Personal Insolvency (Amendment) Act 2015

• Permanent Page URL

Insertion in Principal Act of sections 176A to 176D

24. The Principal Act is amended by the insertion of the following after section 176:

“Supervision

176A. The Insolvency Service may, for the purpose of ensuring compliance by personal insolvency practitioners with their obligations under this Act, supervise personal insolvency practitioners in the performance of their functions under this Act.

Authorised Officers

176B. (1) For the purposes of this Act—

(a) the Director of the Insolvency Service may appoint such members of the staff of the Insolvency Service as he or she deems appropriate to be authorised officers for such period and subject to such terms as the Director may determine,

(b) the Director of the Insolvency Service may appoint such other persons as he or she deems appropriate to be authorised officers for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Director, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, may determine.

(2) Each authorised officer shall be given a warrant of appointment and, when performing any function imposed under this Act, shall, on request by any person affected, produce the warrant or a copy thereof, together with a form of personal identification.

(3) An appointment under this section shall cease—

(a) if the Insolvency Service revokes the appointment,

(b) if the person appointed ceases to be a member of staff of the Insolvency Service, or

(c) if the appointment is for a fixed period, on the expiry of that period.

(4) A revocation under this section shall be in writing.

Powers of Authorised Officers

176C. (1) For the purposes of the performance of the functions of the Insolvency Service under section 176A, an authorised officer may, in relation to a personal insolvency practitioner—

(a) subject to subsections (13) and (14), at all reasonable times enter, inspect, examine and search any premises at, or vehicles in or by means of, which any activity in connection with the practice of the personal insolvency practitioner is carried on,

(b) subject to subsections (13) and (14), enter, inspect, examine and search any dwelling occupied by the personal insolvency practitioner, being a dwelling as respects which there are reasonable grounds to believe records relating to the practice of the personal insolvency practitioner are being kept in it,

(c) without prejudice to any other power conferred by this subsection, require any person found in or on any premises, vehicle or dwelling referred to in any of the preceding paragraphs or any person in charge of or in control of such premises, vehicle or dwelling or directing any activity therein or thereto referred to in paragraph (a) to produce any records, books or accounts (whether kept in manual form or otherwise) or other documents which it is necessary for the authorised officer to see for the purposes of section 176A, and the authorised officer may inspect, examine, copy and take away any such records, books or accounts or other documents so produced or require a foregoing person to provide a copy of them or of any entries in them to the authorised officer,

(d) require any person referred to in paragraph (c) to afford such facilities and assistance within the person’s control or responsibilities as are reasonably necessary to enable the authorised officer to exercise any of the powers conferred on the authorised officer under paragraph (a), (b) or (c),

(e) require any person by or on whose behalf data equipment is or has been used in connection with an activity referred to in paragraph (a), or any person having charge of, or otherwise concerned with the operation of, such data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in respect of its use,

(f) require the personal insolvency practitioner, the personal insolvency practitioner’s employee or the personal insolvency practitioner’s agent to give such authority in writing addressed to such bank or banks as the authorised officer requires for the purpose of enabling the inspection of any account or accounts opened, or caused to be opened, by the personal insolvency practitioner at such bank or banks (or any documents relating thereto) and to obtain from such bank or banks copies of such documents relating to such account or accounts for such period or periods as the authorised officer deems necessary to fulfil that purpose, and

(g) be accompanied by a member of the Garda Síochána and assisted in the exercise of the officer’s powers under this Chapter by such other authorised officers, members of the Garda Síochána or other persons as the authorised officer reasonably considers appropriate.

(2) A requirement under subsection (1)(c), (d), (e) or (f) shall specify a period within which, or a date and time on which, the person the subject of the requirement is to comply with it.

(3) For the purposes of his or her supervisory functions under section 176A, an authorised officer—

(a) may require a person who, in the authorised officer’s opinion—

(i) possesses information that is relevant, or

(ii) has any records, books or accounts (whether kept in manual form or otherwise) or other documents within that person’s possession or control or within that person’s procurement that are relevant to the supervision,

to provide that information or those records, books, accounts or other documents, as the case may be, to the authorised officer,

(b) where the authorised officer deems appropriate, may require that person to attend before the authorised officer for the purpose of so providing that information or those records, books, accounts or other documents, as the case may be, and

(c) may require a person to provide an explanation of a decision, course of action, system or practice or the nature or content of any records or, where the authorised officer deems appropriate, may require that person to attend before the authorised officer for the purpose of so explaining,

and the person shall comply with the requirement.

(4) A requirement under subsection (3) shall specify—

(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and

(b) as the authorised officer concerned deems appropriate—

(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the records, books, accounts or other documents concerned, or

(ii) the place to which the person shall send the information or the records, books, accounts or other documents concerned.

(5) A person required to attend before an authorised officer under subsection (3) —

(a) is also required to answer fully and truthfully any question put to the person by the authorised officer, and

(b) if so required by the authorised officer, shall answer any such question under oath.

(6) Where it appears to an authorised officer that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (5), the authorised officer may, on notice to that person and with the consent of the Insolvency Service, apply in a summary manner to the Circuit Court for an order under subsection (7).

(7) Where satisfied after hearing the application about the person’s failure to comply or fully comply with the requirement in question, the Circuit Court may, subject to subsection (10), make an order requiring that person to comply or fully comply, as the case may be, with the requirement within a period specified by the Court.

(8) An application under subsection (6) to the Circuit Court shall be made to a judge of that Court for the circuit in which the person the subject of the application resides or ordinarily carries on any profession, business or occupation.

(9) The administration of an oath referred to in subsection (5)(b) by an authorised officer is hereby authorised.

(10) A person the subject of a requirement under subsection (1), (3) or (5) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.

(11) Any statement or admission made by a person pursuant to a requirement under subsection (1), (3) or (5) is not admissible against that person in criminal proceedings other than criminal proceedings for an offence under subsection (15), and this shall be explained to the person in ordinary language by the authorised officer concerned.

(12) Nothing in this section shall be taken to compel the production by any person of any records, books or accounts (whether kept in manual form or otherwise) or other documents which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege.

(13) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (14) authorising the entry.

(14) A judge of the District Court, if satisfied on the sworn information of an authorised officer that—

(a) (i) there are reasonable grounds for suspecting that any information is, or records, books or accounts (whether kept in manual form or otherwise) or other documents required by an authorised officer under this section are, held on any premises or any part of any premises, and

(ii) an authorised officer, in the performance of functions under subsection (1), has been prevented from entering the premises or any part thereof,

or

(b) it is necessary that the authorised officer enter a private dwelling and exercise therein any of his or her powers under this section,

may issue a warrant authorising the authorised officer, accompanied if necessary by other persons, at any time or times within 30 days from the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any such functions.

(15) Subject to subsection (12), a person who—

(a) withholds, destroys, conceals or refuses to provide any information or records, books or accounts (whether kept in manual form or otherwise) or other documents required for the purposes of the supervision of a personal insolvency practitioner,

(b) fails or refuses to comply with any requirement of an authorised officer under this section, or

(c) otherwise obstructs or hinders an authorised officer in the performance of functions imposed under this Act,

is guilty of an offence.

(16) Subject to subsection (17), where a personal insolvency practitioner is convicted of an offence under subsection (15), the court may, after having regard to the nature of the offence and the circumstances in which it was committed, order that his or her authorisation to carry on practice as a personal insolvency practitioner be revoked and that he or she be prohibited (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) from applying for any new authorisation to carry on practice as a personal insolvency practitioner.

(17) An order under subsection (16) shall not take effect until—

(a) the ordinary time for bringing an appeal against the conviction concerned or the order has expired without any such appeal having been brought,

(b) such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the conviction or order, as the case may be, is upheld.

(18) In this section, ‘records, books or accounts’ include copies of records, books or accounts.

(19) In this section, where records, books or accounts are held or maintained in electronic form, the obligation to produce or provide records, books or accounts includes an obligation to produce or provide those records, books or accounts in a legible and comprehensible printed form.

(20) Where records are not in legible form, an authorised officer, in the exercise of any of his or her powers under this section, may—

(a) operate any data equipment, including any computer, or cause any such data equipment or computer to be operated by a person accompanying the authorised officer, and

(b) require any person who appears to the authorised officer to be in a position to facilitate access to the records stored in any data equipment or computer or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including:

(i) providing the records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible;

(ii) giving to the authorised officer any password necessary to make the records concerned legible and comprehensible; or

(iii) otherwise enabling the authorised officer to examine the records in a form in which they are legible and comprehensible.

(21) Where an authorised officer believes upon reasonable grounds, that a person has committed an offence under this Act, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.

Notification by Authorised Officer

176D. Where it appears to an authorised officer, in the performance of his or her functions under section 176C, that improper conduct by a personal insolvency practitioner has occurred or is occurring—

(a) he or she shall notify the Insolvency Service in writing, as soon as practicable, setting out the reasons why he or she has formed that view, and

(b) the Insolvency Service shall consider the notification and, if satisfied that there is sufficient reason for so doing, may, in accordance with section 180, cause an investigation to be carried out.”.