Finance Act 2012
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Order to produce documents or provide information. |
127.— The Principal Act is amended by inserting the following after section 908D: | |
“Order to produce documents or provide information. | ||
908E.— (1) In this section and in section 908F— | ||
‘authorised officer’ means an officer of the Revenue Commissioners authorised by them in writing to exercise the powers conferred by this section; | ||
‘relevant offence’ means— | ||
(a) an offence under section 186 of the Customs Consolidation Act 1876 , | ||
(b) an offence under section 139 (5) of the Finance Act 1992 , | ||
(c) an offence under section 1056, 1078 or 1078A, | ||
(d) an offence under subsection (1A), (1B) or (3) of section 102 of the Finance Act 1999 , | ||
(e) an offence under section 119 of the Finance Act 2001 , | ||
(f) an offence under section 79 of the Finance Act 2003 , | ||
(g) an offence under section 78 of the Finance Act 2005 . | ||
(2) For the purposes of the investigation of a relevant offence, an authorised officer may apply to a judge of the District Court for an order under this section in relation to— | ||
(a) the making available by a person of any particular documents or documents of a particular description, or | ||
(b) the provision by a person of particular information by answering questions or making a statement containing the information, | ||
or both. | ||
(3) On an application under subsection (2), a judge of the District Court, if satisfied by information on oath of the authorised officer making the application that— | ||
(a) there are reasonable grounds for suspecting that a person has possession or control of particular documents or documents of a particular description, | ||
(b) there are reasonable grounds for believing that the documents are relevant to the investigation of the relevant offence concerned, | ||
(c) there are reasonable grounds for suspecting that the documents (or some of them) may constitute evidence of or relating to the commission of that relevant offence, and | ||
(d) there are reasonable grounds for believing that the documents should be produced or that access to them should be given, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances, | ||
may order the person to— | ||
(i) produce the documents to an authorised officer to take away and, if the judge considers it appropriate, to identify and categorise the documents to be so produced in the particular manner (if any) sought in the application or in such other manner as the judge may direct and to produce the documents in that manner, or | ||
(ii) give such an officer access to them, | ||
either immediately or within such period as the order may specify. | ||
(4) On an application under subsection (2), a judge of the District Court, if satisfied by information on oath of the authorised officer making the application that— | ||
(a) there are reasonable grounds for suspecting that a person has information which he or she has failed or refused without reasonable excuse to give to the authorised officer having been requested to do so, | ||
(b) there are reasonable grounds for believing that the information is relevant to the investigation of the relevant offence concerned, | ||
(c) there are reasonable grounds for suspecting that the information (or some of it) may constitute evidence of or relating to the commission of that relevant offence, and | ||
(d) there are reasonable grounds for believing that the information should be provided, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances, | ||
may, subject to subsection (5), order the person to— | ||
(i) provide the information to an authorised officer by answering the questions specified in the application or making a statement setting out the answers to those questions or both, and | ||
(ii) make a declaration of the truth of the answers to such questions, | ||
either immediately or within such period as the order may specify. | ||
(5) The references in subsections (2)(b) and (4) to information that may be the subject of an order under this section are references to information that the person concerned has obtained in the ordinary course of business. | ||
(6) An order under this section relating to documents in any place may, on the application of the authorised officer concerned under subsection (2), require any person, being a person who appears to the judge of the District Court to be entitled to grant entry to the place, to allow an authorised officer to enter it so as to obtain access to the documents. | ||
(7) Where the documents concerned are not in legible form, an order under this section shall have effect as an order— | ||
(a) to give to an authorised officer any password necessary to make the documents legible and comprehensible, | ||
(b) otherwise to enable the authorised officer to examine the documents in a form in which they are legible and comprehensible, or | ||
(c) to produce the documents to the authorised officer in a form in which they can be removed and in which they are, or can be made, legible and comprehensible. | ||
(8) An order under this section— | ||
(a) in so far as it may empower an authorised officer to take away a document, or to be given access to it, shall also have effect as an order empowering the officer to make a copy of the document and to take the copy away, | ||
(b) shall not confer any right to production of, or access to, any document subject to legal professional privilege, and | ||
(c) shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise. | ||
(9) (a) Where a document is, or may be, taken away by an authorised officer pursuant to an order under this section, any person to whom the order relates, or who is affected by the order, may request the authorised officer to permit the person to retain the document, or to have it returned to the person, while the officer takes or retains a copy of it. | ||
(b) The authorised officer concerned may accede to a request under paragraph (a) but only if he or she is satisfied that— | ||
(i) the document is required by the person for the purposes of his or her business or for some other legitimate purpose, and | ||
(ii) the person undertakes in writing— | ||
(I) to keep the document safely and securely, and | ||
(II) when requested by the authorised officer to do so, to furnish it to the authorised officer in connection with any criminal proceedings for which it is required. | ||
(c) A failure or refusal by a person to comply with an undertaking given by him or her under paragraph (b)(ii) shall not prejudice the admissibility in evidence in any criminal proceedings of a copy of the document concerned. | ||
(10) Any documents taken away by an authorised officer pursuant to an order under this section may be retained by the officer for use as evidence in any criminal proceedings. | ||
(11) A statement or admission made by a person pursuant to an order under this section shall not be admissible as evidence in proceedings brought against the person for an offence (other than an offence under subsection (16), (17) or (18)). | ||
(12) (a) An order under this section providing that documents be produced, or that access to them be given, by a person may, if the judge of the District Court considers it appropriate to do so, require the person to furnish a certificate to an authorised officer affirming— | ||
(i) the authenticity of the documents, and | ||
(ii) in the case of documents in non-legible form that are reproduced in legible form, the system and manner of that reproduction, | ||
either when the documents are produced, or access to them is given, or at such time thereafter as may be specified in the order. | ||
(b) The Revenue Commissioners may make regulations for the purposes of this subsection specifying the manner in which documents of different types or classes, or copies of them, may be authenticated. | ||
(13) Where a person who produces documents pursuant to an order under this section claims a lien on those documents or some of them, the production shall be without prejudice to the lien. | ||
(14) A judge of the District Court may, on the application of any person to whom an order under this section relates or an authorised officer, vary or discharge the order. | ||
(15) A judge of the District Court may, on the application of any person who is affected by an order under this section whose request for the return of documents under subsection (9) has not been acceded to, make an order regarding the return of the documents concerned to that person if the judge considers it appropriate to do so subject to such conditions (if any) as the judge may direct. | ||
(16) A person who without reasonable excuse fails or refuses to comply with an order under this section shall be guilty of an offence and shall be liable— | ||
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or | ||
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both. | ||
(17) A person who, in purported compliance with an order under this section provides information or makes a statement which is false or misleading in a material particular knowing it to be so false or misleading, or being reckless as to whether it is so, shall be guilty of an offence and shall be liable— | ||
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or | ||
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both. | ||
(18) A person who without reasonable excuse fails or refuses to comply with an undertaking given by him or her under subsection (9)(b)(ii) shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both. | ||
(19) An application for an order under subsection (2) shall be made to a judge of the District Court who is assigned to the district court district in which the documents sought are located or the person from whom the documents or information are sought ordinarily resides or carries on any profession, business or occupation or, if that person is a company (within the meaning of the Companies Acts), the district court district in which the registered office of the company is situated or the company carries on any business. | ||
(20) Nothing in this section shall affect the operation of a provision in any other enactment under which a court may order a person to produce any documents to a person in connection with the investigation of an offence. | ||
Privileged legal material. | ||
908F.— (1) In this section ‘privileged legal material’ means a document which, in the opinion of the court concerned, a person is entitled to refuse to produce or to give access to it on the grounds of legal professional privilege. | ||
(2) If a person refuses to produce a document or give access to it pursuant to an order of a judge of the District Court under section 908E on the grounds that the document is privileged legal material, an authorised officer may apply to a judge of that Court for a determination as to whether the document is privileged legal material. | ||
(3) A person who refuses to produce a document or give access to it pursuant to an order of a judge of the District Court under section 908E on the grounds that the document is privileged legal material may apply to a judge of the District Court for a determination as to whether the document is privileged legal material. | ||
(4) A person who refuses to produce a document or give access to it pursuant to an order of a judge of the District Court under section 908E on the grounds that the document is privileged legal material shall preserve the document and keep it in a safe and secure place pending the determination of an application under subsection (2) or (3) and shall, if it is so determined not to be privileged legal material, produce it in accordance with the order. | ||
(5) Pending the making of a final determination of an application under subsection (2) or (3), the judge of the District Court may give such interim or interlocutory directions as the judge considers appropriate including, without prejudice to the generality of the foregoing, in a case in which the volume of documents that are the subject of the application is substantial, directions as to the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the judge considers to be appropriate for the purpose of— | ||
(a) examining the documents, and | ||
(b) preparing a report for the judge with a view to assisting or facilitating the judge in the making by him or her of his or her determination as to whether the documents are privileged legal material. | ||
(6) An application under subsection (2), (3) or (5) may, if the judge of the District Court so directs, be heard otherwise than in public. | ||
(7) Notice of an application under subsection (2) shall be served on the person to whom the order concerned relates and notice of an application under subsection (3) shall be served on the authorised officer who seeks to compel the production of the document concerned or to be given access to it. | ||
(8) An appeal against the determination of a judge of the District Court under this section shall lie to the Circuit Court and no further appeal shall lie from an order of the Circuit Court made on an appeal under this section. | ||
(9) Rules of court may make provision for the expeditious hearing of applications to a judge of the District Court, and any appeals against the determinations of such a judge, under this section.”. |