Customs and Excise (Miscellaneous Provisions) Act , 1988

1 Interpretation.

1.—(1) In this Act—

“controlled drug” has the same meaning as in the Misuse of Drugs Act, 1977;

“Land Frontier” means the frontier between the State and Northern Ireland;

“officer of Customs and Excise” includes a member of the Garda Síochána and any person in the public service who is for the time being employed in the prevention of the illegal importation or exportation of goods.

(2) In this Act, any reference to any other enactment shall, except where the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.

(3) In this Act, a reference to a section is to a section of this Act and a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other enactment or provision, as may be appropriate, is intended.

2 Powers of search in relation to controlled drugs.

2.—(1) An officer of Customs and Excise who with reasonable cause suspects that a person at or in the vicinity of any port or airport or the Land Frontier is in possession of a controlled drug which—

(a) was imported, or

(b) is being, or is intended to be, exported—

contrary to any prohibition or restriction on the importation or exportation thereof (as the case may be) may without warrant—

(i) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for carrying out the search:

Provided that—

(A) the officer conducting a search of a person being detained shall ensure, so far as practicable, that the person understands the reason for the search and that it is conducted with due respect for the person being searched;

(B) a person being detained shall not be searched by an officer or person of the opposite sex;

(C) where a search of a person being detained involves removal of clothing, other than head-gear or a coat, jacket, glove or similar article of clothing, no officer or person of the opposite sex shall be present unless either that person is a designated medical practitioner or the officer considers that the presence of that person is necessary by reason of the violent conduct of the person to be searched;

(D) a search of the person may, at the request of the person to be searched, or on the direction of the officer or officers present, be carried out by a medical practitioner designated by the officer or officers and may include an intimate body search,

(ii) search any vehicle, vessel or aircraft in which he suspects that a controlled drug may be found (and any substance, article or other thing on or in the vehicle, vessel or aircraft) and for the purpose of carrying out the search may, if he thinks fit, require the person for the time being in control of the vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or if the vehicle, vessel or aircraft is already stationary, to refrain from moving it, and

(iii) examine (by opening or otherwise) and seize and detain anything found in the course of a search under this section which appears to him to be something which might be required as evidence in proceedings for an offence under the Customs Acts or under the Misuse of Drugs Acts, 1977 and 1984.

(2) (a) Where an officer of Customs and Excise decides to search a person under this section, he may require the person to accompany him to a Customs Office or to such other place as may be specified by the officer for the purpose of being so searched at that Office or other place.

(b) Where an officer of Customs and Excise decides to search a vehicle, vessel or aircraft under this section, he may make any one or more or all of the following requirements of the person who appears to him to be the owner or person in control or charge for the time being of the vehicle, vessel or aircraft:

(i) require the person, pending the commencement of the search, not to remove from the vehicle, vessel or aircraft, any substance, article or other thing,

(ii) where the decision to search relates to a vehicle and the place where he finds the vehicle is in his opinion unsuitable for the search, require the person forthwith to take the vehicle (or cause it to be taken) to a place which the officer considers suitable for the search and which he specifies,

(iii) require the person to be in or on or to accompany the vehicle, vessel or aircraft for so long as the requirement under this paragraph remains in force.

(3) Where there is a failure to comply with a requirement under this section, the following provisions shall apply:

(i) where the requirement was made under subsection (2) (a), the officer of Customs and Excise concerned may arrest without warrant the person of whom the requirement was made;

(ii) where the requirement is one mentioned in paragraph (ii) of subsection (2) (b), the officer of Customs and Excise concerned may take the vehicle concerned or cause it to be taken to a place which he considers suitable for a search under this section.

(4) Where a person fails to comply with a requirement under this section, he shall be guilty of an offence under the Customs Acts and shall be liable on summary conviction to a penalty not exceeding £500.

(5) A requirement mentioned in subsection (2) shall remain in force until the search in relation to which it is made is completed, but such search shall be carried out as soon as is practicable.

(6) Nothing in this section shall operate to prejudice any power to search, or to seize or detain any goods, which may be exercised by an officer of Customs and Excise apart from this section.

(7) In this section “vessel” includes a hovercraft.

(8) In this section “aircraft” includes a glider, balloon and model aircraft.

3 Search warrants (controlled drugs).

3.—(1) This section applies to any controlled drug which—

(a) was imported, or

(b) is being, or is intended to be, exported—

contrary to any prohibition or restriction on the importation or exportation thereof (as the case may be).

(2) Where a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of an officer of Customs and Excise that there is reasonable ground for suspecting that—

(a) a person is in possession of a controlled drug to which this section applies on any premises or land, or

(b) a document directly or indirectly relating to, connected with a transaction or dealing in a controlled drug which was, or an intended transaction or dealing in such a drug which would if carried out be, an offence under the Customs Acts, is in the possession of a person on any premises or land,

such Justice or Commissioner may issue a search warrant under this section.

(3) A search warrant issued under this section shall be expressed and operate to authorise a named officer of Customs and Excise, accompanied by such other officers of Customs and Excise and such other persons as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or other land named or specified in the warrant, to search such premises or other land and any persons found thereon, to examine any substance, article or other thing found thereon, to inspect any book, record or other document found thereon and, if there is reasonable ground for suspecting that an offence under the Customs Acts is being or has been committed in relation to a substance, article or other thing found on such premises or land reasonably believed by the said named officer to be a controlled drug, or that a document so found is a document mentioned in subsection (2) (b), or is a record or other document which the said named officer has reasonable cause to believe to be a document which may be required as evidence in proceedings for an offence under the Customs Acts or under the Misuse of Drugs Acts, 1977 and 1984, in relation to a controlled drug, to seize and detain the substance, article, document or other thing (as the case may be).

(4) Where any premises or land is entered pursuant to a warrant issued under this section, the officer of Customs and Excise named in the warrant may do either or both of the following—

(a) arrest without warrant any person or persons found on such premises or land for the purpose of searching him or them,

(b) so arrest any such person or persons and keep him or them as may be appropriate, under arrest until such time as such of the powers of search or examination as he wishes to exercise pursuant to the warrant have been exercised by him.

(5) The provisions of subparagraphs (A), (B), (C) and (D) of paragraph (i) of subsection (1) of section 2 shall apply to any search of the person carried out under this section.

(6) In this section—

“land” includes any structure on land;

“structure” means building, structure or any other thing constructed, erected, placed or made on, in or under any land.

4 Evidential value of certain certificates.

4.—(1) In any proceedings for an offence under the Customs Acts relating to the importation or exportation of, or any dealing with, a controlled drug in contravention of the said Acts, the production of a certificate purporting to be signed by an officer of the State Laboratory and relating to an examination, inspection, test or analysis (as may be specified in the certificate) of a controlled drug or other substance, product or preparation (so specified) shall, until the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such an officer.

(2) In this section “officer of the State Laboratory” means the State Chemist or a person acting under his direction.

5 Search warrants (books or documents).

5.—(1) If a Justice of the District Court or a Peace Commissioner is satisfied by information on oath of an officer of Customs and Excise that there is reasonable ground for suspecting that any books or documents relating to transactions in contravention of the laws relating to customs are kept or concealed in any premises or place, such Justice or Commissioner may issue a search warrant under this section.

(2) A search warrant issued under this section shall be expressed and operate to authorise a named officer of Customs and Excise, accompanied by such other officers of Customs and Excise as may be necessary at any time or times within one month of the date of issue of the warrant, to enter (if need be by force) the premises or place specified in the warrant, to search the said premises or place, to inspect any books or documents found therein and to seize and carry away all or any such books or documents reasonably believed by such officer or officers to relate to transactions in contravention of the laws relating to customs and any uncustomed goods or goods found therein the importation of which is prohibited.

6 Seizure or detention of conveyances.

6.—Where any goods are found in, on, or in any manner attached to, any vehicle or other conveyance, the said vehicle or other conveyance shall, for the purposes of section 202 of the Customs Consolidation Act, 1876, section 5 (2) of the Customs Act, 1956, or section 7 (2), be deemed to have been made use of in the conveyance of the said goods.

7 Detention of certain goods.

7.—(1) Whenever an officer of Customs and Excise reasonably suspects that any goods—

(a) were imported, or

(b) are being, or are intended to be, exported,

either without payment of any duty payable thereon or in contravention of any prohibition or restriction on the importation or exportation thereof (as the case may be), the goods may be detained by the said officer until such examination, enquiries or investigations as may be deemed necessary by the said officer, or by another officer of Customs and Excise, have been made for the purpose of determining to the satisfaction of either such officer whether or not the goods were (as the case may be) imported, or were being, or were intended to be, exported as aforesaid.

(2) Whenever any goods are detained by an officer of Customs and Excise under subsection (1), all ships, boats, carriages or other conveyances, together with all horses and other animals and things made use of in the importation or exportation (as the case may be) or conveyance of the said goods, may also be detained by the said officer.

(3) When a determination referred to in subsection (1) has been made in respect of any goods, or upon the expiry of a period of one month from the date on which the said goods were detained under the said subsection, whichever is the earlier, the said goods (together with any conveyances, animals or things detained with the said goods by virtue of subsection (2)) shall be seized as liable to forfeiture under the Customs Acts or released.

8 Liability to forfeiture of certain goods.

8.—Without prejudice to any other provisions of the Customs Acts, any goods liable to any duty on importation which are imported into the State without payment of the said duty, contrary to the provisions of the said Acts or of any instrument relating to customs made under statute, shall be liable to forfeiture, together with any goods which shall be found packed with or used in concealing such goods.

9 Burden of proof in certain proceedings.

9.—(1) (a) This subsection applies to any proceedings under the Customs Acts brought by the Director of Public Prosecutions or an officer of Customs and Excise and relating to any goods exported or any goods seized under those Acts.

(b) Where in any proceedings to which this subsection applies any question arises as to compliance with any prohibition or restriction on the exportation of goods or as to whether—

(i) the goods are or were subject to any prohibition or restriction on their exportation, or

(ii) the goods were lawfully brought to, sent to or kept at any place for the purpose of exportation, or

(iii) the goods were lawfully dealt with in any other manner for the purpose of exportation,

in every such case the onus of proof in relation to any such question shall lie on the person against whom the proceedings are brought.

(2) (a) This subsection applies to any proceedings relating to any goods seized under the Customs Acts and brought against one or more of the following—

(i) the State,

(ii) the Attorney General,

(iii) the Revenue Commissioners,

(iv) the Revenue Solicitor,

(v) an officer of Customs and Excise.

(b) Where in any proceedings to which this subsection applies any question arises as to the place from which any goods have been brought or as to compliance with any prohibition or restriction on the importation or exportation of goods, or as to whether—

(i) the goods were lawfully imported on payment or securement of duties payable thereon, or

(ii) the goods were lawfully imported or lawfully unshipped or unladen from any ship or boat or from any aircraft, train or vehicle, or

(iii) the goods were lawfully brought to, sent to or kept at any place for the purpose of exportation, or

(iv) the goods were lawfully dealt with in any other manner for the purpose of exportation,

in every such case the onus of proof in relation to any such question shall lie upon the person bringing the proceedings.

10 Provision relating to goods grown, etc., in certain areas of Continental Shelf.

10.—Any goods brought into the State which are shown to the satisfaction of the Revenue Commissioners to have been grown, produced or manufactured in any area standing designated for the time being by order under section 2 of the Continental Shelf Act, 1968, and to have been so brought direct from that area shall be deemed, for the purposes of the Customs Acts and of any instrument relating to customs made under statute and of the statutes which relate to the duties of excise and the management of those duties and of any instrument relating to the duties of excise and the management of those duties made under statute, to have been grown, produced or manufactured (as the case may be) in the State and not to have been imported.

11 Excise control of certain hydrocarbon oil.

11.—(1) In this section—

“hydrocarbon oil” means hydrocarbon oil within the meaning of section 21 (15) of the Finance Act, 1935;

“the Order of 1975” means the Imposition of Duties (No. 221) (Excise Duties) Order, 1975 (S.I. No. 307 of 1975).

(2) Reference in this section to the production of hydrocarbon oil shall be construed as reference to the obtaining of hydrocarbon oil from any natural source and cognate words shall be construed accordingly.

(3) (a) A person may apply to the Revenue Commissioners for the approval by them of a place for the storage of hydrocarbon oil produced in the State and the Revenue Commissioners may, subject to compliance with such conditions as they may think fit to impose, grant approval to that person (hereinafter referred to as an “approved person”) for the storage of such oil in that place.

(b) All hydrocarbon oil produced in the State shall be removed either to a place approved of under this subsection or to the premises of a refiner of hydrocarbon oil for the purpose of undergoing a process of manufacture therein.

(c) For the purposes of the duties of excise imposed by paragraphs 11 (1) and 12 (1) of the Order of 1975, a place approved of under this subsection shall be deemed to be the premises of the producer of the hydrocarbon oil stored at that place.

(d) An approved person shall be liable for payment of the duties of excise imposed by paragraphs 11 (1) and 12 (1) of the Order of 1975 on hydrocarbon oil liable to the said duties which is sent out from a place in respect of which approval was granted to the said person under this subsection, or which is used in the said place for any purpose other than the manufacture or production of hydrocarbon oil, and shall be so liable at the time at which the said hydrocarbon oil is sent out from the said place or is so used in the said place.

(4) Subject to compliance with such conditions as the Revenue Commissioners may think fit to impose, the duties of excise imposed by paragraphs 11 (1) and 12 (1) of the Order of 1975 shall not be charged or levied on any hydrocarbon oil produced in the State which is removed from a place approved of under subsection (3) to the premises of a refiner of hydrocarbon oil for the purpose of undergoing a process of manufacture therein.

(5) In paragraphs 11 (6) and 12 (5) of the Order of 1975, “manufacturer” shall be construed as including producer.

(6) (a) The Revenue Commissioners may, subject to compliance with such conditions as they may think fit to impose, allow any hydrocarbon oil produced or manufactured in the State which is liable to a duty of excise to be warehoused without payment of duty in a warehouse approved of by them for that purpose.