Tuesday, 17 July 2012

Questions (121)

Noel Harrington

Question:

125 Deputy Noel Harrington asked the Minister for Finance the State agencies and bodies within the remit of his Department that have the power to enter or search premises in the course of an investigation; if they need a search warrant; and if he will make a statement on the matter. [35315/12]

View answer

Written answers (Question to Minister for Finance)

In response to the Deputy's question details of the bodies within the remit of my department that have the power to enter or search premises in the course of an investigation are as follows.

The Central Bank of Ireland

The Central Bank of Ireland ("the Bank") has been granted the power under various provisions of sector-specific legislation (i.e. legislation governing the supervision of different types of regulated financial service provider) to conduct investigations of regulated financial service providers (and entities related to such providers in certain circumstances) in order to assist the Bank in the performance of its statutory functions. While the scope of the Bank's powers to conduct investigations varies according to the applicable legislation, a power is usually given to the Bank to appoint persons (usually, but not always, referred to as "authorised officers") to enter and search the premises of regulated financial service providers. Each sector-specific investigation regime provides for the powers of authorised officers when entering and searching premises.

Save for entering a dwelling, there is no general obligation on an authorised officer to obtain a court issued warrant before exercising their powers of entry and search in accordance with their certificate/warrant of appointment. Certain sector-specific investigation regimes provide that where an authorised officer is prevented from entering a premises, he or she may apply to court for a warrant and/or an order of the Court requiring the firm or related party to cooperate. Certain provisions provide explicitly that the power of an authorised officer to enter and search a dwelling can only be exercised with the consent of the occupier or by a court issued warrant.

Pursuant to Part 3 of the Central Bank (Supervision and Enforcement) Bill 2011, most of the provisions governing the appointment and powers of authorised officers across financial services legislation are to be consolidated and the existing provisions repealed or revoked. Section 24 of the published Bill provides for the powers of authorised officers to enter premises, subject to the proviso that entry to a dwelling requires the consent of the occupier or a warrant issued under section 26 of the Bill. Section 26 of the Bill provides, inter alia, that notwithstanding the powers conferred on authorised officer to enter premises, a judge of the District Court may on the sworn evidence of an authorised officer issue a warrant authorising the officer to enter the premises (by reasonable force if necessary).

Officers of the Revenue Commissioners

I have been provided with the following information in by Office of the Revenue commissioners. Officers of the Revenue Commissioners, appropriately authorised by the Commissioners, have statutory powers of entry to premises. These powers do not extend to private dwellings. Where it is intended to enter and search a private dwelling, a search warrant under the appropriate statutory provision must be obtained. The following at A is a list and a brief summary of the statutory powers allowing for entry onto a premises without warrant; and at B a list and brief summary of the statutory provisions for search warrants for premises including private dwellings.

Legal Provisions: A. Statutory powers of entry without search warrant. Section 136(1) of the Finance Act 2001 as amended.

Pursuant to s.136(1) of the Finance Act 2001, as amended by s.70 of the Finance Act 2008 and by s.87(a) of the Finance Act 2002, and by the Finance Act 2012, an Officer authorised by the Revenue Commissioners may enter a premises or other place (not including a dwelling) where certain activities are occurring. A search warrant is not required for such entry. The activities are as follows:

(a) Production/processing/holding/storage/keeping/importation/purchase/packaging/offeringfor sale/sale/disposal of alcohol products, tobacco products and mineral oil;

(b) Supply of electricity or natural gas;

(c) Manufacture/distribution/storage/repair/modification/importation/dealing/delivery/disposalof mechanically propelled vehicles;

(d) Acceptance of bets;

(e) Provision of postal services or a service for the delivery of foreign packets.

Additionally, an Officer may enter a premises where records relating to the above products or activities are kept or when the Officer has a reasonable belief that they are kept on those premises. Pursuant to s.136(2) of the Finance Act 2001, an Officer may enter a premises or other place (not including a dwelling) in order to examine and to take samples of mineral oil from a fuel tank. They may also enter a premises in order to question a vehicle owner, a person in charge of a vehicle or where the registered owner is not an individual, to question the director, manager or principal officer of the owner. The questioning must relate to mineral oil. The Officer may search the premises also.

Section 43(10)(a) of the Finance Act 1975 as amended provides:

For all entry at reasonable times to any public place in which gaming machines are believed to be available for play.

Section 125 of the Finance Act 1992 provides:

For entry at all reasonable times to any public place where amusement machines are believed to be available for play.

Section 108 of the Value Added Tax Consolidation Act 2010 provides:

That an Authorised Officer may at all reasonable times enter any premises or place where he or she reasonably believes business is carried on or anything is done in connection with business.

Regulation 6 of S.I. No. 610/2011 European Communities (Intrastat) Regulations 2011 provides:

An Authorised Officer may at all reasonable times enter any premises or place where he or she reasonably believes records relating to goods to which the Intrastat system applies are kept.

Section 902B(4)of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer when investigating a class or classes of policies and the policy holders to whom they were issued may at all reasonable times enter any premises or place of business of an assurance company to inspect the relevant records held by the assurance company in respect of a sample of policies of that class or those classes and the policy holders of those policies.

Section 903(2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place in connection with PAYE enquiries and investigations.

Section 904(2) of the Taxes Consolidation Act 1997, as amended, provides:

That an Authorised Officer may at all reasonable times enter any premises or place in connection with Relevant Contract Tax.

Section 904A(2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of a relevant deposit taker for the purposes of auditing for a year of assessment the return made by the relevant deposit taker.

Section 904C(2) of the Taxes Consolidation Act 1997 provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of an assurance company carrying on life business for the purposes of auditing for a financial year the returns made by the company of appropriate tax.

Section 904D (sub-section 2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of an investment undertaking for the purposes of auditing for a financial year the returns made by the investment undertaking of appropriate tax.

Section 904E(2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of an authorised insurer for the purpose of auditing for a year of assessment claims made by an authorised insurer.

Section 904F(2) of the Taxes Consolidation Act 1997 provides:

That an Authorised Office may at all reasonable times enter any premises or place of business of a qualifying lender for the purpose of auditing for a year of assessment claims made by the qualifying lender.

Section 904G(2) of the Taxes Consolidation Act 1997 provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of a qualifying insurer for the purposes of auditing for the year of assessment claims made by the qualifying insurer.

Section 904H(2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of a qualifying savings manager or a person appointed by a qualifying savings manager for the purposes of auditing compliance.

Section 904I(2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of an accountable person for the purposes of auditing a return made by an accountable person in connection with dividend withholding tax.

Section 904J(2) of the Taxes Consolidation Act 1997 as amended provides:

An Authorised Officer may at all reasonable times enter any premises or place of business of an accountable person for the purposes of auditing for year of assessment returns made by an accountable person in connection with tax deduction from payments in respect of professional services by certain persons.

Section 904K(2) of the Taxes Consolidation Act 1997 as amended provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business of a relevant person for the purpose of auditing a return in relation to notices of attachment.

Section 905(2) of the Taxes Consolidation Act 1997 provides:

That an Authorised Officer may at all reasonable times enter any premises or place of business where there is reason to believe that any trade/profession/activity is carried out therein which is chargeable to tax of any type. Furthermore, they are empowered to enter a premises where they have reason to believe that any property is located there.

B. Search of Premises Under Warrant. Section 205 of the Customs Consolidation Act 1876 as amended by Section 19 of the Finance Act 1936

provides that an Officer of Customs and Excise may search any house or place under search warrant where there is reasonable suspicion of the presence of uncustomed or prohibited goods.

Section 3(2) of the Customs and Excise (Miscellaneous Provisions) Act 1988

provides that an Officer of Customs and Excise may on reasonable grounds for suspecting that a person is in possession of a controlled drug on any premises or land or documents directly or indirectly relating to transactions or dealing in controlled drugs on any premises or land may obtain a search warrant to search such premises or land.

Section 5(1) of the Customs and Excise (Miscellaneous Provisions) Act 1988

provides that a search warrant may be issued to a named Officer of Customs and Excise where there are reasonable grounds for suspecting the presence of books or documents relating to a smuggling offence at any place.

Section 12(1) Animals Remedies Act 1993,

provides that an Officer of Customs and Excise on reasonable suspicion that a person is in possession of a prohibited substance in contravention of the hormone legislation or that such substance or documents relating to them are on any land, premises, vehicle or thing obtain a search warrant to enter and search such land, premises or vehicle.

Section 136(5) of the Finance Act 2001

provides that an Authorised Office of the Revenue Commissioners may on reasonable grounds for suspecting that anything liable to forfeiture under the law relating to excise is being kept or concealed on or any premises or place, obtain a search warrant.

Section 905(2)(A) of the Taxes Consolidation Act 1997

provides that an Authorised Officer of the Revenue Commissioners may obtain a search warrant where there are reasonable grounds for suspecting:

(a) that a person may have failed or fail to comply with any provision of the Acts; or

(b) such failure is likely to have lead or may lead to serious prejudice to the proper assessment or collection of tax and;

(c) records material to such assessment or collection are likely to be kept or concealed at a premises or place.

Section 908C of the Taxes Consolidation Act 1997 as amended

provides that an Authorised Officer may apply for a search warrant if he has reasonable grounds for suspecting that an offence is being, has been or is about to be committed, and

(i) that material which is likely to be of value (whether by itself or together with other information) to the investigation of the offence,

(ii) that evidence of, or relating to the commission of, the offence is to be found in any place.

Section 5 of the Criminal Justice (Surveillance) Act 2009

provides that senior officers of the Revenue Commissioners can apply to the Court for authorisation to enter a premises including a dwelling to place or remove a surveillance device.