S.I. No. 238/2000 - District Court (Taxes Consolidation Act, 1997) Rules, 2000.

The District Court Rules Committee, in exercise of the powers conferred on them by section 91 of the Courts of Justice Act, 1924 , section 72 of the Courts of Justice Act, 1936 , section 17 of the Interpretation Act, 1937 [as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ] and section 34 of the Courts (Supplemental Provisions) Act, 1961 , do hereby, with the concurrence of the Minister for Justice, Equality and Law Reform, make 0the following Rules of Court:—

1. These Rules may be cited as the District Court (Taxes Consolidation Act, 1997) Rules, 2000.

2. These Rules shall come into operation on the 25th day of August, 2000, and shall be read together with all other District Court Rules for the time being in force.

3. Order 38 of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) is hereby amended by the substitution of the following rule for rule 2(7):—

Procedure under Taxes Consolidation Act, 1997

and the said Order 38, as so amended, appears in Schedule I hereto.

4. The Forms numbered 38.12 and 38.13 hereafter shall be substituted for the Forms of the same number in Schedule B to the District Court Rules, 1997 ( S.I. No. 93 of 1997 ).

Schedule B

O.38, r.2(7)

No. 38.12

TAXES CONSOLIDATION ACT, 1997

section 908A as amended

NOTICE OF APPLICATION FOR AN ORDER TO INSPECT AND TAKE COPIES OF ENTRIES IN BOOKS OR RECORDS

Schedule B

O.38, r.2(9)

No. 38.13

TAXES CONSOLIDATION ACT, 1997

section 908A as amended

ORDER TO INSPECT AND TAKE COPIES OF ENTRIES IN BOOKS OR RECORDS

UPON HEARING an application made to this Court on this date by the above-named applicant, an authorised officer of the Revenue Commissioners for an order 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 BEING SATISFIED that there are reasonable grounds for believing that an offence (within the meaning of section 1078(2) of the Act is being, has been or is about to be committed ^* (in the said district) and that there is material in the possession of ............................................ at ............................................................  ^* (in the said district) which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the relevant facts;

THE COURT HEREBY ORDERS pursuant to the said 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 that the applicant be at liberty to inspect and take copies of any entries in books, records or other documents or inspect and take copies of any documentation associated with or relating to an entry in such books, records or other documents for the purposes of investigation of the relevant facts.

Dated this ................ day of ........................... 20 .....

............................................................ ..

Judge of the District Court

SCHEDULE 1

ORDER 38

MISCELLANEOUS MATTERS

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

1. (1) Subject to the provisions of paragraph (3) hereof, 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.

(2) Subject to the provisions of paragraph (3) hereof, 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 at the examination of the witnesses during the preliminary examination of 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.

(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.

(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

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.

(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.

(3) The order of the Court granting the application shall be in the Form 38.10, 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.

(4) An application to the District 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.

(5) Such 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.

(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

Notice to Coroner of result of proceedings

3. At the conclusion of criminal proceedings in the District 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.

Procedure under Criminal Justice Act, 1994

4. In rules 5 to 8 inclusive following, “the Act” means the Criminal Justice Act, 1994 (No. 15 of 1994).

5. An application to the Court for an order under the provisions of subsection (2) of section 38 of the Act authorising the detention of cash seized beyond forty-eight hours shall be made by sworn information of a member of the Garda Síochána or an officer of customs and excise in the Form 38.4, Schedule B. The order of the Court thereon shall be in the Form 38.5, Schedule B.

6. (1) An application to the Court under the provision of subsection (3) of section 38 of the Act for an order authorising the further detention of cash seized shall be made by notice in the Form 38.6, Schedule B.

(2) Notice of the application shall be served on any person to be affected by the order 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 forty-eight hours before the date of hearing.

(3) The order of the Court on the application shall be in the Form 38.7, Schedule B.

7. (1) An application to the Court under the provisions of subsection (5) of section 38 of the Act for an order directing the release of cash detained by virtue of the provisions of the said section shall be by notice in the Form 38.8, Schedule B.

(2) Notice of the application shall be served on the member of the Garda Síochána or officer of customs and excise on whose application the order for detention was made 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 forty-eight hours before the date of hearing.

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

8. Applications to the Court under the Act may be brought, heard and determined before a Judge of the District Court at any sitting of the Court within such Judge's District.

GIVEN this 29th day of May, 2000.

PETER SMITHWICK, Chairman

JOHN GARAVAN,

UINSIN MAC GRUAIRC,

JOHN P. BROPHY,

OLIVE CAULFIELD.

I concur in the making of the foregoing Rules.

Dated this 25th day of July, 2000.

JOHN O'DONOGHUE,

Minister for Justice, Equality and Law Reform.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Rules amend order 38 and the Rules of the same name passed on 31 May, 1999 (now S.I. No. 234 of 1999 ) and reflect the provisions of section 68 of the Finance Act, 2000 . The main change is a clarification of the range of documentation which may be inspected and this is reflected in minor changes to Forms 38.12 and 38.13.

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