ORDER 38: MISCELLANEOUS MATTERS ^[1]

Power of Court in cases of variance, defects, omissions, no offence disclosed or no appearance

Variance between evidence and complaint

1.(1) Subject to the provisions of paragraph (3), in cases of summary jurisdiction no variance between the complaint and the evidence adduced in support thereof, as to the time at which the offence or cause of complaint is stated to have been committed or to have arisen, shall be deemed material, provided that such information or complaint was in fact made within the time limited by law for making the same; nor shall any variance between the complaint and the evidence adduced in support thereof, as to the place in which the offence or cause of complaint is stated to have been committed or to have arisen, be deemed material, provided that the said offence or cause of complaint was committed or arose within the jurisdiction of the Judge by whom the case is being heard, or that, the accused resides or in the case of an offence was arrested within such jurisdiction. In any such case the Court may amend the summons, warrant or other document by which the proceedings were originated and proceed to hear and determine the matter.

Defects

(2) Subject to the provisions of paragraph (3), no objection shall be taken or allowed on the ground of a defect in substance or in form or an omission in the summons, warrant or other document by which the proceedings were originated, or of any variance between any such document and the evidence adduced on the part of the prosecutor at the hearing of the case in summary proceedings or in proceedings in the Court relating to an indictable offence, but the Court may amend any such summons, warrant or other document, or proceed in the matter as though no such defect, omission or variance had existed.

Court’s discretion

(3) Provided, however, that if in the opinion of the Court the variance, defect or omission is one which has misled or prejudiced the accused or which might affect the merits of the case, it may refuse to make any such amendment and may dismiss the complaint either without prejudice to its being again made, or on the merits, as the Court thinks fit; or if it makes such amendment, it may upon such terms as it thinks fit adjourn the proceedings to any future day at the same time or at any other place.

No offence disclosed / No appearance

(4) Where the Court is of opinion that the complaint before it discloses no offence at law, or if neither the prosecutor nor accused appears, it may if it or thinks fit strike out the complaint with or without awarding costs.

Order to inspect and copy entries in Banker's Books

Application for - venue

2.(1) An application by a party to proceedings before the Court for an order under section 7 of the Bankers' Books Evidence Act 1879 (42 & 43 Vict. Ch. 11) authorising that party to inspect and take copies of entries in a banker's books for any of the purposes of such proceedings may be made at any sitting of the Court for the Court district wherein the proceedings have been brought.

- notice of

(2) Such application shall be preceded by the issue of a notice in the Form 38.1, Schedule B, which shall be lodged with the Clerk prior to the making of the application.

Order of court

(3) The order of the Court granting the application shall be in the Form 38.2, Schedule B, which shall, unless the Court otherwise directs, be served upon the relevant bank three clear days before the order is to be obeyed. Service may be effected by delivering a copy of the order to the office of the bank wherein the relevant records are kept.

Section 7A application- venue

(4)  An application to the Court by a member of the Garda Síochána not below the rank of Superintendent under the provisions of section 7A of the Bankers' Books Evidence Act 1879 (42 & 43 Vict. Ch.11) as inserted by section 131 Central Bank Act 1989, and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act 1996, may be made at any sitting of the Court for the Court district wherein the offence in question is alleged to have been committed and may be heard otherwise than in public.

- Notice of

(5)  application shall be preceded by the issue of a notice in the Form 38.10, Schedule B, which shall be lodged with the Clerk prior to the making of the application.

- Order

(6) The order of the Court granting the application shall be in the Form 38.11, Schedule B, which shall, unless the Court otherwise directs, be served upon the relevant bank three clear days before the order is to be obeyed. Service may be effected by delivering a copy of the order to the office of the bank wherein the relevant records are kept.

Procedure under Taxes Consolidation Act 1997

Section 908A application- venue

(7) An application by an authorised officer of the Revenue Commissioners under the provisions of section 908A of the Taxes Consolidation Act 1997, as inserted by section 207 of the Finance Act 1999, and as amended by section 68 of the Finance Act 2000 and by section 132 of the Finance Act 2002 shall be by information on oath and in writing, in the Form 38.12, Schedule B, to the Judge for the Court district wherein the offence in question is alleged is being, has been or is about to be committed or where the financial institution in respect of which the order is sought is located, and may be heard otherwise than in public.

- Order

(8) The order of the Court granting the application shall be in the Form 38.13, Schedule B, which shall, unless the Court otherwise directs, be served upon the relevant financial institution three clear days before the order is to be obeyed. Service may be effected by delivering a copy of the order to the office of the financial institution wherein the relevant books or records are kept.

Notice to Coroner of result of proceedings

Notice under 1962 Act

3.  At the conclusion of criminal proceedings in the Court in relation to the death of a person the Clerk shall, pursuant to section 25(3) of the Coroners Act 1962 (No. 9 of 1962), inform (in the Form 38.3, Schedule B) the coroner holding an inquest in relation to the death of the result of the proceedings.

Detention of Cash under section 38 of the Criminal Justice Act 1994 (as amended)

Interpretation – rules 5 to 8

4. In rules 5 to 8 inclusive following, “the 1994 Act” means the Criminal Justice Act 1994, as amended by section 20 of the Proceeds of Crime (Amendment) Act 2005.

Application for order authorising detention of cash

5.(1) An application to the Court by a member of the Garda Síochána or an officer of Customs and Excise under section 38(2) of the 1994 Act for an order authorising the detention beyond 48 hours of cash seized by virtue of section 38 of the 1994 Act shall be made by the information on oath and in writing of the applicant, in the Form 38.4, Schedule B. Such application shall be made to a Judge of the Court assigned to the Court district wherein the cash was seized. Where the Judge is satisfied that the urgency of the case so requires, such application may be heard and determined on the evidence viva voce and on oath of the applicant. In such case, a written note of the evidence given shall be prepared by the applicant and signed by the Judge.

Form and service of order

(2) An order of the Court made on such application authorising the detention beyond forty-eight hours of cash seized by virtue of section 38 shall be in the Form 38.5, Schedule B. The applicant shall cause a copy of the said order to be served upon the person from whom the cash was seized and upon any person by or on whose behalf the cash was being imported or exported.

Application for order authorising further detention of cash

6.(1) An application to the Court by a member of the Garda Síochána or an officer of Customs and Excise under section 38(3) of the 1994 Act for an order authorising the further detention in accordance with section 38(3) of the 1994 Act of cash seized by virtue of section 38 of the 1994 Act shall be made to a Judge of the Court assigned to the Court district in which the cash was seized. Such application shall be preceded by the issue, and service upon the person from whom the cash was seized and upon any other person directly affected by the order previously made under section 38(2) of the 1994 Act in respect of the cash, of copy of a notice of application, in the Form 38.6, Schedule B.

Notice of application

(2) Notice of such application shall be served at least seven days before the date fixed for the hearing of the application. Such notice may be served in the manner provided by Order 10. The original notice of application together with a statutory declaration as to the service of copy of such notice shall be lodged with the Clerk at least 48 hours before the date of the hearing.

Form and service of order

(3) An order of the Court granting the application shall be in the Form 38.7, Schedule B. The applicant shall cause a copy of any such order to be served upon the person from whom the cash was seized and upon any person by or on whose behalf the cash was being imported or exported.

Application for order releasing cash

7.(1) An application to the Court under section 38(5) of the 1994 Act for an order releasing cash seized by virtue of section 38 of the 1994 Act shall be made to a Judge of the Court assigned to the Court district in which the cash was seized. Such application shall be preceded by the issue, and service upon the member(s) of the Garda Síochána or officer(s) of Customs and Excise who applied for any order previously made under section 38(2) or section 38(3) of the 1994 Act in respect of the cash, of copy of a notice of application, in the Form 38.8, Schedule B.

Notice of application

(2) Notice of such application shall be served at least seven days before the date fixed for the hearing of the application. Such notice may be served in the manner provided by Order 10. The original notice of application shall be lodged with the Clerk at least 48 hours before the date of hearing.

Form of order

(3) The order of the Court on the application shall be in the Form 38.9, Schedule B.

Venue

8.(1) Applications to the Court under the 1994 Act may be brought, heard and determined before a Judge of the Court assigned to the Court district wherein the cash was seized at any sitting of the Court within such Judge’s district.

Order directing service

(2) Where it seems appropriate to the Court to so direct, in any application under section 38(3) or section 38(5) of the 1994 Act, the Court may direct that any person who had not been given notice of the application be joined in, or put on notice of, the application

Certificates and applications under Sex Offenders Act 2001 (as amended)

Certificate

9.(1) A certificate for the purposes of section 14 of the Sex Offenders Act 2001 shall be in the Form 38.14 , Schedule B and shall be signed by a District Court clerk. 

Order imposing post-release supervision

(2) An order imposing post-release supervision pursuant to section 29 of the Sex Offenders Act 2001 may be in the Form 38.15 Schedule B and a copy of such Order shall be transmitted to the Governor of the Prison to which the accused is committed.

Application under section 30A

(3) An application to the Court pursuant to section 30A of the Sex Offenders Act 2001 (inserted by section 51 of the Criminal Law (Sexual Offences) Act 2017) for an order amending any condition attached to, or for the inclusion of any new condition in, any order of the Court providing for post-release supervision may be made at any sitting of the Court for the court area in which the order providing for post-release supervision was made.  Notice of the application shall be served on the sex offender concerned at least seven days before the date of hearing. A copy of the notice of application together with a statutory declaration as to service thereof shall be lodged with the Clerk at least 48 hours before the date of hearing.

Indorsement of new terms

(4) Where the Court amends a condition or includes any new condition attached to, or includes any new condition in, the order providing for post-release supervision, the terms of any such change may be indorsed upon the original or a copy of the order and re-signed by the Judge.

Procedure under International Protection Act 2015

Interpretation – rules 11 to 15

10. In Rules 11 to 15 inclusive following, “the 2015 Act” means the International Protection Act 2015 (No. 66 of 2015). 

Commitment to detention

11. Where a person who has been detained pursuant to section 20(1) or section 20(9) of the 2015 Act is brought before a Judge of the Court assigned to the Court district in which the person is being detained and is committed by the Court to a place of detention as provided for in section 20(3)(a), section 20(10), or as the case may be, section 20(12) of the 2015 Act, the order of detention shall be in the Form 38.16, 38.16A, or as the case may be, 38.16B, Schedule B. 

Conditional release

12. Where a person who has been detained pursuant to section 20(1) or section 20(9) of the 2015 Act is brought before a Judge of the Court assigned to the Court district in which the person is being detained and is released pursuant to the provisions of section 20(3)(b) or section 20(11), as the case may be, of the 2015 Act, the order of release shall be in the Form 38.17, Schedule B. 

Variation of conditional release

- application
- service
- order

13. Where a person has been released from detention on conditions in accordance with section 20(3)(b) of the 2015 Act, an application in the Form 38.18, Schedule B, may be made pursuant to section 20(5) or section 20(10) of the 2015 Act, to a Judge of the Court assigned to the Court district in which the person’s dwelling place is situated, by the person, an immigration officer, or a member of the Garda Síochána to vary, revoke or add a condition to the person’s release. Such application shall be served in the manner provided by section 5 of the 2015 Act and shall be served at least four clear days before the date for hearing the application. The original of the application shall be lodged with the Clerk at least 48 hours before the date of hearing. The order of the Court on the application shall be in the Form 38.19, Schedule B.  

Order of release

14. Where a person who has been detained pursuant to the provisions of section 20 of the 2015 Act is brought, under the provisions of section 20(4) or section 20(10) of the 2015 Act before a Judge of the Court assigned to the Court district where the person is being detained and the Court orders the release of that person, the order of release shall be in the Form 38.20, Schedule B. 

Order where the person indicates a desire to leave the State

15. Where a person detained pursuant to the provisions of section 20 of the 2015 Act is brought before a Judge of the Court assigned to the Court district where the person has been detained, the order of the Judge under the provisions of section 20(13)(b) of the 2015 Act shall be in the Form 38.21, Schedule B.

Orders under Part 3 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010

Interpretation – rules 16 to 18

16. In this rule and rules 17 and 18, “the 2010 Act” means the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6 of 2010).

Applications under section 17

17. An application by a member of the Garda Síochána for an order under section 17(2) of the 2010 Act ordering a person not to carry out a specified service or transaction shall be made ex parte and otherwise than in public to a Judge of the Court assigned to the Court district in which the order is proposed to be served. Such application shall be by the information on oath and in writing of the applicant, in the Form 38.22, Schedule B. Where the application is for a second or subsequent order in relation to a particular service or transaction, there shall be produced with the information a copy of any previous order of the Court in relation to that service or transaction. An order of the Court under section 17(2) of the Act shall be in the Form 38.23, Schedule B.

Applications under section 19 or 20

18.(1) An application to a Judge of the Court under section 19 of the 2010 Act to revoke an order or direction made under section 17 of the 2010 Act, or an application under section 20 of the 2010 Act for an order in relation to any of the property concerned in an order or direction made under section 17 of the 2010 Act shall be made to a Judge of the Court assigned to the Court district in which the order or direction was made. Such application shall be preceded by the issue of a notice of application, in the Form 38.24, Schedule B, and service of a copy of that notice, in the manner provided by Order 10, upon the member of the Garda Síochána on whose application the order under section 17 of the 2010 Act was made.

Notice of applications under section 19 or 20

(2) Unless the Court permits otherwise, notice of such application shall be served at least four days before the date fixed for the hearing of the application, and the original notice of application together with a statutory declaration as to the service of copy of the notice shall be lodged with the Clerk at least 48 hours before the date of the hearing.

Service of applications under section 19 or 20

(3) Where it seems appropriate to the Court to so direct, in any application under section 19 or section 20 of the 2010 Act, the Court may direct that any person affected by the direction or order who was not given notice of the application be joined in, or put on notice of, the application.

Order under section 19 or 20

(4) An order of the Court under section 20 of the 2010 Act shall be in the Form 38.25, Schedule B.

Service under section 110

(5) Notwithstanding Order 10, the Court may authorise or direct service of any notice of application for an order under section 19 or section 20 of the 2010 Act, or order made under section 17, section 19 or section 20 of the 2010 Act by any means referred to in section 110 of the 2010 Act.

[1]     Order 38 substituted in its entirety by SI 262 of 2021, effective 2 June 2021.