Dáil Éireann Debate, Tuesday - 24 May 2016
119. Deputy Micheál Martin asked the Minister for Finance if, and why, no criminal prosecution may be brought if the administrative sanctions procedure under Part IIIC of the 1942 Central Bank Act leads to the imposition of a monetary penalty; to review this provision in order to ensure that appropriate sanction is in place; and if he will make a statement on the matter. [11751/16]
View answerThe Central Bank and Financial Services Authority of Ireland Act, 2004, amended Part IIIC of the Central Bank Act, 1942, the Administrative Sanctions Procedure (ASP), to provide that where a monetary penalty is imposed on a financial service provider or person concerned in the management of a financial service provider, that provider or other person is not liable to be prosecuted or punished for the same offence. The reverse is also the case; if the provider or person has been charged with an offence involving a breach of regulatory requirements, they may not have a monetary penalty imposed upon them under the ASP.
This provision was introduced in compliance with the legal principle of "ne bis in idem," which essentially amounts to a prohibition of punishment twice for the same offence, a principle recognised in EU law, European Convention on Human Rights law and constitutional law.
However, in recognition of this, before proceeding with an administrative sanction action in circumstances where a criminal offence may also lie, the Central Bank will consider whether criminal proceedings would be more appropriate and where necessary will consult with the Director of Public Prosecutions in this regard.
The ASP was reviewed and amended by the Central Bank (Supervision and Enforcement) Act 2013. That Act, among other matters, amended the sanctions available to the Central Bank, including by adding powers to suspend and revoke authorisations of financial service providers and by doubling the maximum monetary penalties.
