I welcome this opportunity to introduce the Criminal Justice (International cooperation on Electronic Evidence and Other Matters) Bill. It recently passed all stages in the Dáil.
Electronic evidence is central to almost every modern criminal investigation. Data now moves rapidly across the globe. As a consequence, the investigation of crime in one member state is often dependent on evidence located in another member state. Electronic data is inherently volatile. It is easily deleted, altered or moved. Of course, the emergence of cloud computing, where the exact physical location of data is transitory and dynamic, brings further jurisdictional difficulties. Law enforcement has increasingly become reliant on voluntary co-operation with service providers. However, this approach lacks enforcement power, does not adequately protect fundamental rights and leaves it up to service providers to determine the legitimacy of requests.
The Bill delivers on the programme for Government commitment to implement the EU e-evidence package. That package provides a clear, legally certain and efficient process for law enforcement in one member state to directly request electronic evidence from service providers established in another member state, while protecting fundamental rights. Ireland's role is central to the implementation of the e-evidence package. It is expected that up to 600 service providers could designate their “addressee” in the State. To date, Department officials have identified over 400 service providers subject to the package. It is important legislation from Ireland’s perspective.
The EU e-evidence package is comprised of two separate but interdependent legislative instruments: the e-evidence regulation and the e-evidence directive. The regulation, which the Oireachtas agreed to opt into in 2018, has direct effect, while the directive is an internal market instrument that is binding on Ireland. The regulation imposes an obligation upon service providers to preserve or produce electronic evidence at the request of a judicial authority of another member state, imposing a legal obligation upon them to do so. The directive requires that member states ensure service providers offering services in the EU designate an addressee to process incoming orders. Both the regulation and the directive require that penalty provisions be put in place to address issues of non-compliance as and when they arise.
Unfortunately, and notwithstanding the significant efforts of both my officials and the Office of the Parliamentary Counsel, the transposition deadline for the e-evidence directive of 18 February 2026 could not be met. It is, therefore, important to enact this and transpose the directive as soon as possible. The e-evidence regulation applies from 18 August next.
The Bill comprises five Parts and a Schedule. Part 1 is comprised of standard provisions concerning the Short Title, commencement and expenses, and the definition of key words. It also addresses matters relating to the designation of the director as the competent authority under Article 12(1)(b) of the terrorist regulation. Section 1 of the Bill provides for the Short Title and commencement. Section 2 provides for the definition of terms. Section 3 is a standard provision regarding expenses. Section 4 provides for the designation of the director of criminal justice international co-operation as the competent authority for the purposes of Article 12(1)(b) of the terrorist content regulation. Section 5 is a necessary companion to section 4. Section 6 provides for the service of notices or other documents under this Bill, including by electronic means. Section 7 is a standard provision relating to regulations.
Part 2 of the Bill comprises sections 8 to 22, inclusive. Section 8 provides for the establishment of oifig an stiúrthóra um chomhar idirnáisiúnta ceartais choiriúil, or the office of director of criminal justice international co-operation. The holder of this office shall be known as the director of criminal justice international co-operation, and is referred to in the Bill as “the Director.” Section 8 also provides that the Schedule to the Bill shall have effect in relation to the director. The Schedule details the provisions applicable to the director, providing that the director will be a corporation sole with perpetual succession and official seal, and the power to sue and be sued.
Section 9 provides for the appointment of the director, while section 10 sets out the circumstances in which a person is not eligible or is disqualified. Section 11 is a standard provision providing that a person cannot simultaneously hold office as both the director and as an elected Member of the Oireachtas, the European Parliament or a local authority. Section 12 provides for the resignation and removal of the director. The appointment of members of staff is provided for in section 13, while section 14 provides for the appointment by the director of a deputy director. Section 15 provides that the director may engage consultants. Section 16 provides that the director will be indemnified against legal actions. Section 17 outlines the various functions of the director. Section 18 is a standard provision providing for the delegation of functions. Section 19 provides that the director may enter into an information sharing arrangement. Section 20 provides that the director shall submit an annual report. Section 21 sets out the statistical information that the director must collect. Section 22 provides that the director may issue guidance notes.
Part 3, comprising sections 23 and 24, provides for the designation of the director as the enforcement authority and central authority, respectively, for the purposes of the e-evidence regulation.
Part 4, comprising sections 25 to 30, provides for the designation of the director as the central authority for the e-evidence directive. Section 25 is a standard provision providing for definitions. Section 26 designates the director as the central authority. Section 27 provides that service providers must designate a designated establishment or a legal representative for the receipt of, compliance with and enforcement of decisions. Section 28 acts as a companion provision. Section 29 provides that service providers must notify the director of the addresses and contact details of their designated establishments. Section 30 provides that service providers and their designated establishments or legal representatives shall be jointly and severally liable.
Part 5 comprises sections 31 to 70. Section 31 provides for the definition of terms used in Part 5 of the Bill. Section 32 is a standard provision intended to protect legal privilege. Section 33 creates an offence if certain persons, including staff, make an unauthorised disclosure. Section 34 creates an offence of giving false information. Section 35 provides for the appointment of authorised officers, while section 36 provides for the powers of those officers. Section 37 provides that a judge of the District Court may issue a search warrant. Section 38 provides that the director may request that a service provider provide a compliance report to enable the director to confirm that the service provider is complying. Section 39 provides that the director may either enter into an agreement with the service provider in respect of an alleged contravention or cause a directed investigation to start. Section 40 provides that the director may enter into a written agreement with a service provider. Section 41 provides for definitions of terms used in Chapter 4. Section 42 provides that the director may direct an authorised officer to undertake a directed investigation. Section 43 provides that an authorised officer shall submit a copy of a completed report to the director. Section 44 sets out the actions that may be taken by the director.
Section 45 provides for the definition of terms used in Chapter 5 of Part 5. Section 46 provides that, for the purpose of an undertaking, the chief adjudication officer shall assign an adjudication officer to conduct the adjudication. Section 47 provides that service providers shall not be liable to be penalised twice. Section 48 sets out the actions an adjudication officer shall take. Section 49 provides that an adjudication officer shall make a decision on the balance of probabilities. Section 50 sets out that the maximum financial penalty that can be imposed on a service provider can be no greater than 2% of the total world annual turnover of the service provider in the preceding financial year. Section 51 provides that an adjudication officer must send the director and the service provider concerned a written notice of decision to impose a penalty. Section 52 sets out the circumstances in which a decision of a financial penalty takes effect. Section 53 provides that a service provider may appeal. Section 54 provides that, where no appeal is made, the director shall make an application in a summary manner to the Circuit Court, and section 55 sets out procedural and other matters concerning that.
Section 56 provides that an adjudication officer may, before making a decision as to a contravention or the imposition of a financial penalty under section 49, refer a question of law to the High Court. Section 57 provides that an adjudication officer may award the costs of proceedings against the service provider or director. Section 58 provides that the Minister may make regulations relating to the conduct of proceedings. Section 59 provides that a payment made by a service provider goes to the Exchequer. Section 60 sets out the circumstances in which a person is not eligible for appointment or disqualified from holding office as an adjudication officer. Section 61 provides that a person cannot also be a Member of the Oireachtas or the local authority. Section 62 provides for the nomination by the director of persons for appointment as adjudication officers. Section 63 provides for the appointment by the Minister of adjudication officers. Section 64 provides that an adjudication officer is independent.
Section 65 provides that the Minister can make regulations. Section 66 provides that the director may require staff to assist adjudication officers. Section 67 provides that summary proceedings for an offence may be brought and prosecuted by the director. Section 68 provides that summary proceedings for an offence under this Bill may be instituted at any time within two years. Section 69 provides for liability for a body corporate. Section 70 provides that, where a person is convicted of an offence, the court shall order the person to pay the director any costs incurred.
The provisions of the Bill have been carefully drafted. It is important to enhance Ireland's position as a European hub for digital regulation and as a trusted partner in international justice. Data protection rules and principles will apply to the mechanism of European production orders. The regulation reiterates the requirement of necessity and proportionality, setting out the key safeguards in this area. I look forward to listening to Senators' contributions.
