Estreatment Of Recognisances Forfeiture Of Money Lodged ^[1]

Judge to certify non-performance of condition

1. Where, upon the non-performance of a condition of a recognisance which the Court has power to estreat, it is intended to apply to the Court for an order to estreat the recognisance or for an order to forfeit a sum of money which was lodged in lieu of a surety or sureties by the party entering into the recognisance, the recognisance shall first be produced to a Judge assigned to the court district wherein it is then deposited, who may, upon having such proof as the Judge shall think fit, endorse on the recognisance a certificate in the Form 27.1 Schedule B, and such certificate shall be evidence of the non-performance of any condition of the recognisance certified therein.

Venue for application to estreat or to forfeit

2.^[2] (1)     Rules 2 to 7 inclusive of this Order shall apply only in any case in which section 9 of the Bail Act 1997 does not apply.

(2) In any such case, an application for an order to estreat such recognisance or to forfeit such sum of money shall be made by a superintendent of the Garda Síochána and may be made at any subsequent sitting of the Court at which the order directing that the recognisance be entered into was made or before which the principal party was bound by the recognisance to appear.

Notice of application

- to estreat

3.       (1) Such application for an order to estreat shall be preceded by the issue and service of a notice in the Form 27.2 Schedule B upon the principal party or the surety or sureties to the recognisance or upon all or any of them as appropriate notifying them of such application.

- to forfeit money lodged

(2) Such application for an order to forfeit a sum of money lodged in lieu of a surety or sureties shall be preceded by the issue and service of a notice in the Form 27.3 Schedule B  upon the party by whom the said sum was lodged.

- Service of notice

(3) A notice issued under this rule shall be served upon each person to whom it is directed in accordance with the provisions of Order 10, rule 3 (1) of these Rules or by ordinary post and shall be served at least seven days before the date fixed for hearing the application.

(4) Where the person upon whom it is proposed to serve a notice issued under this rule has not a fixed address within the State, service of the notice upon that person may be effected in such manner as the Judge shall direct.

(5) Where, however, it is proposed to serve a notice of application for an order to forfeit a sum of money lodged in lieu of a surety or sureties and the Judge is satisfied, upon application made in that behalf, that the person to be served has not a fixed address within the State and that the person's whereabouts are unknown and cannot be ascertained by reasonable enquiries, the Judge may, if considering it proper to do so, by order dispense with service in such case

- Lodgment of notice

(6) When service of a notice issued under this rule has been effected, the original notice, together with a statutory declaration as to service thereof, shall be lodged with the Clerk at least four days before the date fixed for the hearing.

Order of the court

4. The Court, on hearing an application aforementioned and upon production of the recognisance with the certificate aforesaid endorsed thereon and on hearing any further evidence (if any) tendered in support of the application, may,

(a) where the application is for an order to estreat a recognisance, make an order in the Form 27.4, Schedule B (which may be by way of an endorsement on the recognisance) to estreat the recognisance in such amount or amounts and against the principal party or the surety or sureties or against all or any of them as the Court thinks fit,

^[3]Provided that a recognisance shall not be estreated against any person who has not been served with the notice of application to estreat; or

- to forfeit money lodged

(b) where the application is for an order to forfeit a sum of money lodged in lieu of a surety or sureties, make an order in the Form 27.5 Schedule B (which may be by way of an endorsement on the recognisance) directing the forfeiture of the sum of money lodged or any part thereof.

Clerk to send notices

5.(1)^[4] Whenever the Court makes an order to estreat a recognisance the Clerk shall send by ordinary post to each person against whom the order was made a notice informing that person of the making of the order, of the amount in which the recognisance has been estreated against that person and of the time (if any) allowed for payment thereof

(2) Whenever the Court makes an order directing the forfeiture of a sum of money lodged in lieu of a surety or sureties (or part thereof) the Clerk shall, if the whereabouts of the person by whom the sum of money was lodged are known, notify such person of the making of the said order and of the amount of money which was directed to be forfeited.

Where such amount is less than the sum of money lodged the balance shall be repayable to such person.

Enforcement of order

- by distress

6.       (1) Where an order to estreat a recognisance has not been complied with, the Court may, at any time after the expiration of the time allowed for payment or, if no such time was allowed, at any time after the making of the order to estreat, issue a warrant in the Form 27.6 Schedule B to levy the amount due by any person under the order by distress and sale of the goods of such person.

- by committal

^[5](2)^[6] At any time after the issue of such warrant of distress the said superintendent may, having first given at least seven days' notice of the application (in the Form 27.7 Schedule B) to the person against whom the warrant of distress was issued (the respondent) and having lodged the original of that Form with the Clerk, apply to the Court for the issue of a warrant to commit the respondent to prison, and the Court may, if satisfied on hearing the applicant that it was found impossible to execute that warrant of distress, issue a warrant (Form 27.8, Schedule B) to commit the respondent to prison for a term not exceeding the appropriate period specified in the scale set out in the Table to section 2 of the Courts (No 2) Act 1986 , and thereupon the applicant shall return the warrant of distress to the Court for cancellation

(3)^[7]

In case of peace recognisance - fresh bond may be required

7. Where the Court estreats as against the principal party a recognisance to keep the peace or to be of good behaviour or to keep the peace and to be of good behaviour it may, in addition to estreating the recognisance, order the principal party to enter into a fresh recognisance during the period for which it would have remained in force but for the order to estreat.

PROCEDURE UNDER BAIL ACT 1997

Estreatment and forfeiture

8.^[8] Where the Court makes an order under section 9(1) of the Bail Act 1997, notice of the order in the Form 27.9 Schedule B shall be served on the accused and on any surety or sureties by prepaid ordinary post.

9.^[9] An application to vary or discharge an order made under section 9(1) of the Bail Act 1997 may be made within 21 days from the date of the issue of the notice, and shall be in the Form 27.10 Schedule B. Notice of the application shall be served on the prosecutor by prepaid ordinary post at least seven days before the hearing of the application. Any order varying or discharging an order under section 9(1) of the Bail Act 1997 shall be in the Form 27.11 Schedule B.

10.^[10] (1)^[11] A warrant of committal under section 9 (12) of the Bail Act 1997shall be in the Form 27.12 Schedule B, and the period of imprisonment to be specified shall be identified in accordance with the Table to section 2 of the Courts (No 2) Act 1986 as if such table were reproduced in this rule.

(2) Where a warrant mentioned in sub-rule (1) has been issued but not executed and the amount specified in the estreatment order (or such order as varied) for payment by the person named in the warrant is paid to the Clerk, he or she shall forthwith notify the Superintendent of the Garda Síochána to whom the warrant was addressed that such payment has been made and shall request the Superintendent to return the warrant for cancellation.

(3) Where section 9(13) of the Bail Act 1997 applies, the prosecutor may proceed in accordance with Order 37, rule 12.