STOCK EXCHANGE ACT, 1995

• (5) No liquidator, receiver, administrator, examiner or creditor of a member firm shall have or obtain any recourse or right against a client's money or a client's investment instruments or a client's documents of title relating to such investment instruments received, held, controlled or paid on behalf of the client until all proper claims of the client or of the client's heirs, successors or assigns against the client's money or the client's investment instruments or documents of title have been satisfied in full.

• (6) A person with which an account is kept in pursuance of client money requirements or rules under this section shall not incur any liability as constructive trustee where money is wrongfully paid from the account unless the person permits the payment with knowledge that the payment is wrongful or having deliberately failed to make inquiries in circumstances in which a reasonable and honest person would have done so.

• (7) It shall be an offence for a director, officer or employee of a member firm or any of them to misappropriate fraudulently any money or investment instruments held, controlled or paid on behalf of a client by that member firm.

53 Exemption from liability for damages.

53.—(1) The Bank or any officer or any employee of the Bank or any member of its Board or any member of a committee appointed under section 65 of this Act shall not be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions under this Act unless it is shown that the act or omission was in bad faith.

• (2) Neither an approved stock exchange nor any of its officers, nor any employee nor any member of its Board shall be liable in damages for anything done or omitted in the discharge or purported discharge of any functions carried out in the exercise of a public duty under this Act unless it is shown that the act or omission was in bad faith.

• (3) Without prejudice to the generality of subsection (1) of this section, the approval or revocation of approval or supervision or regulation of a stock exchange or the approval, amendment, revocation or imposition of rules or the consent or refusal to consent to amendments of rules shall not constitute a warranty as to the solvency or performance of an approved stock exchange or a member firm and neither the State nor the Bank shall be liable in respect of any loss or losses arising out of the insolvency or default or performance of any approved stock exchange or member firm.

• (4) Without prejudice to the generality of subsection (1) of this section, the authorisation, supervision, regulation or revocation of authorisation of a member firm under this Act shall not constitute awarranty as to the solvency or performance of a member firm and neither the State nor the Bank shall be liable in respect of any losses incurred through the insolvency, default or performance of the member firm.

54 Personal liability of officers.

54.—(1) If—

• (a) an approved stock exchange or authorised member firm is being wound up and is unable to pay all of its debts and has contravened section 15, 27 or 52 (3) of this Act, and

• (b) the Court considers that such contravention has contributed to the inability of the approved stock exchange or authorised member firm to pay all of its debts or has resulted in substantial uncertainty as to the amount, location, ownership or otherwise of the assets and liabilities of the approved stock exchange or authorised member firm or of the money or investment instruments of clients of the said approved stock exchange or authorised member firm or has substantially impeded its orderly winding-up,

the Court, on the application of the liquidator or receiver or the Bank or any creditor or client or investor, may, if it thinks it proper to do so, declare that any one or more of the officers or former officers or both of the said approved stock exchange or authorised member firm who is or are in default shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the Court, of the debts and other liabilities of the said approved stock exchange or authorised member firm.

• (2)
• (a) Where the Court makes a declaration under subsection (1) of this section, it may give such directions as it thinks proper for the purpose of giving effect to the declaration and in particular may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the approved stock exchange or authorised member firm to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the approved stock exchange or authorised member firm held by or vested in him or any company or other person on his behalf, or any person claiming as assignee from or through the person liable under the declaration or any company or person acting on his behalf, and may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection.

• (b) In paragraph (a) of this subsection “assignee” includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation or mortgage was created, issued or transferred or the interest created but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the grounds of which the declaration is made.

• (3) The Court shall not make a declaration under subsection (1) of this section in respect of a person if it considers that—

• (a) he took all reasonable steps to secure compliance by the approved stock exchange or authorised member firm with section 15, 27 or 52 (3) of this Act, or

• (b) he had reasonable grounds for believing and did believe that a competent and reliable person, acting under the supervision or control of a director who has been formally allocated such responsibility, was charged with the duty of ensuring that section 15, 27 or 52 (3) of this Act was complied with and was in a position to discharge that duty.

• (4) This section shall have effect notwithstanding that the person concerned may be liable to be prosecuted for a criminal offence in respect of the matters on the ground of which the declaration is to be made or that such person has been convicted of such an offence.

• (5) In this section “officer”, in relation to an approved stock exchange or authorised member firm, includes a person who has been convicted of an offence under section 194 of the Companies Act, 1990 or section 35 or 70 (7) of this Act, in relation to a statement concerning the keeping of proper accounting records by the approved stock exchange or authorised member firm concerned.

• (6) A person who, being a director of an approved stock exchange or authorised member firm, fails to take all reasonable steps to secure compliance by the approved stock exchange or authorised member firm with the requirements of section 15, 27 or 52 (3) of this Act or has by his own wilful act been the cause of any default by the approved stock exchange or authorised member firm thereunder, shall be guilty of an offence:

Provided, however, that—

• (a) in any proceedings against a person in respect of an offence under this section consisting of a failure to take reasonable steps to secure compliance by the approved stock exchange or authorised member firm with the requirements of this section, it shall be a defence to prove that he had reasonable grounds for believing and did believe that a competent and reliable person was charged with the duty of ensuring that those requirements were complied with and was in a position to discharge that duty, and

• (b) a person shall not be sentenced to imprisonment for such an offence unless, in the opinion of the Court, the offence was committed wilfully.

PART VII Enforcement, Offences and Penalties

55 Authorised officers.

55.—(1) The Governor of the Bank or any other person appointed by him for that purpose may authorise in writing such and so many persons to be authorised officers for the purposes of this Act and may revoke such authorisations.

• (2) Every person who is appointed to be an authorised officer pursuant to this section shall be furnished with a certificate of appointment and shall, if so required, when exercising any power conferred on him by this Act, produce such certificate or a copy of it duly authenticated by the Governor of the Bank or such other person appointed by the Governor of the Bank for that purpose and a form of personal identification.

56 Powers of authorised officers.

56.—(1) The powers conferred by this section may be exercised in respect of a proposed stock exchange, an approved stock exchange, a former approved stock exchange, a proposed member firm, an authorised member firm, a member firm or a former authorised member firm, or associated undertaking or related undertaking and those persons shall be referred to in this section as “persons to whom this section applies”.

• (2) An authorised officer may, for the purpose of obtaining any information which the Bank may require for enabling it to exercise any of its functions under this Act, do any one or more of the following things:

• (a) enter at all reasonable times any premises in which he reasonably believes there are any books, documents or records relating to the activities of persons to whom this section applies,

• (b) inspect or take copies of or extracts from and make such inquiries and do other acts as he may consider necessary in relation to—

• (i) the books and records kept by persons to whom this section applies, including books and records kept pursuant to sections 15 and 27 of this Act,

• (ii) any books of account relating to the said persons kept under the Companies Acts, and

• (iii) any other documents relating to the business of the said persons,

• (c) require any person employed in the premises to produce to him any books, documents or records which are in such person's control, possession or procurement and which such authorised officer has reasonable grounds for believing to be records, books or documents relating to the activities of any persons to whom this section applies and to give him such information as he may reasonably require in regard to any entries in any such records, books or documents,

• (d) require any person employed in the premises to prepare a report on specified aspects of the business of the persons to whom this section applies or to explain entries in any documents or other materials furnished.

• (3) A person who has in his power, possession or procurement any books, records or other documents aforesaid shall—

• (a) produce them at the request of an authorised officer and permit him to inspect and take copies of, or extracts from, them;

• (b) at the request of an authorised officer, give any information which may be reasonably required with regard to them, and

• (c) give such other assistance and information to an authorised officer as is reasonable in the circumstances.

• (4) Where any person from whom production of a book, record or other document is required claims a lien thereon, the production of it shall be without prejudice to the lien.

• (5) Nothing in this section shall compel the production by a barrister or solicitor of a book, record or other document containing a privileged communication made by him or to him in that capacity or the furnishing of information contained in a privileged communication so made.

• (6) An approved stock exchange or member firm and any person carrying on the business of an associated or related undertaking to which this section relates shall each furnish the Bank—

• (a) at such times as the Bank may specify, from time to time, such information and returns concerning the business to which the approval, authorisation or business of the associated undertaking or related undertaking relates, as the Bank may specify from time to time, being information and returns which the Bank considers it necessary to have for the due performance of its functions under this Act; and

• (b) within such period as the Bank may specify, any information and returns (not being information or returns specified under paragraph (a) of this subsection) concerning the business to which the approval, authorisation or business of the associated undertaking or related undertaking relates that the Bank may request in writing, being information and returns which the Bank considers it necessary to have for the due performance of its functions under this Act.

• (7) This section shall apply to the business of an associated undertaking or related undertaking to the extent only that the information and returns sought by the Bank are, in the opinion of the Bank, materially relevant to the proper appraisal of the business of the approved stock exchange or authorised member firm to which the associated or related undertaking relates.

• (8) A requirement under this section may be imposed on a person outside the State to whom this section applies.

• (9) The duty to produce or provide any information, document, material or explanation extends to a liquidator or receiver or any person who is or has been an officer or employee or agent of the persons to whom this section applies, or who appears to the Bank or the authorised officer to have the information, document, material or explanation in his possession or under his control.

• (10) In this section—

• (a) “specified” means specified under this section;

• (b) “agent”, in relation to a person to whom this section applies or any associated or related undertaking, includes past as well as present agents, as the case may be, and includes its bankers, accountants, solicitors, auditors and its financial and other advisors, whether or not those persons are officers or persons to whom this section applies.

• (11) If any officer, employee, shareholder or agent of a person to whom this section applies refuses to produce to an authorised officerwhen requested to do so any book or document which it is his duty under this section to produce, or refuses to co-operate with an authorised officer when required to do so, or refuses to answer any question put to him by an authorised officer with respect to the affairs of the person to whom this section applies, the authorised officer may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, employee, shareholder or agent of the person to whom this section applies and any statement which may be offered in defence, make any order or direction as it thinks fit including a direction to the person concerned to attend or re-attend before the authorised officer or produce particular books or documents or answer a particular question put to him by the authorised officer, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the authorised officer.

57 Appointment of inspector by Court.

57.—(1) Without prejudice to the powers of the Bank under this Act, where the Bank is of the opinion that it is in the interest of the proper and orderly regulation of approved stock exchanges or their member firms or the protection of investors that an investigation should be held into the affairs of an approved stock exchange or authorised member firm, the Bank may apply to the Court and the Court, as it thinks proper, may appoint one or more inspectors to investigate the affairs of that approved stock exchange or that authorised member firm and, where necessary, any subsidiary or other associated or related undertaking and to report thereon in such manner as the Court directs.

• (2) Before applying to the Court to appoint an inspector under this section, the Bank may, if it is of the opinion that it would not be prejudicial to the interests of shareholders or creditors or investors, notify the approved stock exchange or authorised member firm concerned in writing of the action which it proposes to take and of the grounds on which it proposes to take it and, in such a case, the approved stock exchange or authorised member firm shall, within such period as the Bank may set out in the notification, be entitled to give to the Bank a statement in writing explaining its activities.

58 Power of inspector to extend investigation.

58.—Where an inspector appointed under section 57 of this Act to investigate the affairs of an approved stock exchange or authorised member firm or any subsidiary or other associated or related undertaking thinks it necessary for the purposes of his investigation to investigate the affairs of any other approved stock exchange or authorised member firm or any body corporate or any undertaking which is or was at any relevant time a subsidiary or an associated undertaking or related undertaking of the first-mentioned approved stock exchange or authorised member firm, he shall, with the approval of the Court, have power to do so, and shall report on the affairs of the other approved stock exchange or authorised member firm or body corporate or undertaking or associated undertaking or related undertaking so far as he thinks the results of his investigation are relevant to the investigation of the affairs of the first-mentioned approved stock exchange or authorised member firm.

59 Direction to inspector by Court.

59.—Where the Court appoints an inspector under section 57 of this Act, it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise, with a view to ensuring that the investigation is carried out as efficiently and as effectively as is practicable in the circumstances.

60 Powers of inspection.

60.— (1) It shall be the duty—

• (a) of all officers, employees, shareholders and agents of an approved stock exchange or authorised member firm or other body the affairs of which are being investigated under section 57 or 64 of this Act including officers, shareholders and agents outside the State, and

• (b) of any other person, including those being investigated under section 58 of this Act, and including any person outside the State, who the inspector considers is, or may be, in possession of any information concerning the affairs of an approved stock exchange or authorised member firm, to produce to an inspector appointed under section 57 or 64 of this Act all books, accounts, deeds, records or other documents of, or relating to, the business of the approved stock exchange or authorised member firm or person being investigated under section 58 of this Act, which are in their control, possession or procurement, to attend before the inspector, when required to do so, and to give to him all assistance in connection with the investigation which they are reasonably able to give and it shall be the duty of such persons to comply with the requirement.

• (2) The inspector may examine on oath or by written interrogatories on oath the officers, employees, shareholders and agents of the approved stock exchange or authorised member firm being investigated or other person being investigated under section 57 or 64 of this Act and any such person as is mentioned in subsection (1) of this section in relation to its affairs and may—

• (a) administer an oath accordingly, and

• (b) reduce the answers of such person to writing and require that person to sign them.

• (3) If an inspector has reasonable grounds for believing that a director or past director or employee or past employee or agent or past agent or shareholder or past shareholder of the approved stock exchange or of the authorised member firm or of the other person mentioned in subsection (1) of this section whose affairs the inspector is investigating maintains or has maintained, either at that time or at any time in the past, an account of any description in a credit institution or an account with any other financial institution, including holdings of investment instruments, whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid—

• (a) any money which has resulted from or been used in the financing of any transaction, arrangement or agreement relating to the business of the approved stock exchange or authorised member firm or relating to client money or investment instruments, or

• (b) any money which has been in any way connected with any act or omission, or series of acts or omissions, which on the part of that director or employee or agent constituted misconduct (whether fraudulent or not) towards the approved stock exchange or its shareholders or the authorised member firm or its shareholders or any client or creditor of the approved stock exchange or authorised member firm,the inspector may require the director or past director or employee or past employee or agent or past agent or shareholder or past shareholder or other person mentioned in subsection (1) of this section to produce to him all documents in the director's or employee's or agent's possession, or under his control, relating to that account and in this subsection “credit institution account” includes an account with any person exempt by virtue of section 7 (4) of the Central Bank Act, 1971, from the requirement of holding a licence granted under section 9 of that Act.

• (4) If any officer, shareholder or agent of the approved stock exchange or authorised member firm or any such person as is mentioned in subsection (1) of this section refuses to produce to the inspector any book or document which it is his duty under this section to produce, refuses to attend before the inspector when required to do so, or refuses to answer any question put to him by the inspector with respect to the affairs of the approved stock exchange or authorised member firm or other person mentioned in subsection (1) of this section, as the case may be, the inspector may certify the refusal under his hand to the Court and the Court may thereupon inquire into the case and, after hearing any witnesses who may be produced against or on behalf of the officer, shareholder or agent of the approved stock exchange or authorised member firm or associated undertaking or related undertaking or other such person as is mentioned in subsection (1) of this section and any statement which may be offered in defence, make any order or direction as it thinks fit including a direction to the person concerned to attend or re-attend before the inspector or produce particular books or documents or answer a particular question put to him by the inspector, or a direction that the person concerned need not produce a particular book or document or answer a particular question put to him by the inspector.

• (5) In this section, any reference to officers or agents shall include past as well as present officers and agents, as the case may be, and “agents”, in relation to an approved stock exchange or authorised member firm or other person mentioned in subsection (1) of this section, shall include the bankers, accountants, solicitors, auditors and the financial and other advisors of the approved stock exchange or authorised member firm or other person mentioned in subsection (1) of this section, whether those persons are or are not officers of the approved stock exchange or authorised member firm or other body or undertaking.

61 Expenses of and fees relating to an investigation.

61.— (1) The expenses of and incidental to an investigation and the fees incurred by an inspector appointed by the Court under section 57 of this Act or by the Bank under section 64 of this Act shall be defrayed by the Bank but the Court may direct that any person dealt with in the report shall be liable, to such extent as the Court may direct, to repay the Bank any expenses or fees incurred.

• (2) Without prejudice to subsection (1) of this section, any person who is—

• (a) convicted on indictment of an offence on a prosecution instituted as a result of an investigation,

• (b) ordered to pay damages or restore any property in proceedings brought as a result of an investigation, or

• (c) awarded damages or to whom property is restored in proceedings brought as a result of an investigation,

may, in the same proceedings, be ordered to repay all or part of the expenses and fees referred to in subsection (1) of this section, and interest as appropriate, to the Bank or to any person on whom liability has been imposed by the Court under that subsection, provided that, in the case of a person to whom paragraph (c) of this subsection relates, the Court shall not order payment in excess of one-tenth of the amount of the damages awarded or of the value of the property restored and interest as appropriate as the case may be, and any such order shall not be executed until the person concerned has received his damages or the property has been restored, as the case may be.

• (3) The report of an inspector may, if he thinks fit, and shall, if the Court so directs, include a recommendation as to the directions, if any, which he thinks appropriate, in the light of his investigation, to be given under subsection (1) of this section.

62 Inspectors' reports and proceedings thereon.

62.—(1) An inspector appointed under section 57 of this Act may, and shall if the Court so requires, make an interim report to the Court and, on conclusion of the investigation, shall make a final report to the Court but he may at any time in the course of the investigation, without making an interim report, inform the Court of matters coming to his knowledge as a result of the investigation tending to show that an offence has been committed.

• (2) On a report being presented to it under this section, the Court shall—

• (a) forward a copy of any such report to the Minister, the Minister for Enterprise and Employment, and the Bank,

• (b) if it thinks fit, furnish a copy thereof to the approved stock exchange or authorised member firm concerned and its auditors, or, if the report concerns the affairs of an authorised member firm or an associated or related undertaking of an authorised member firm, furnish a copy thereof to the approved stock exchange of which the authorised member firm in question is a member, and

• (c) if it thinks fit—

• (i) furnish a copy thereof, on request and on payment of such fee as it may fix, to any other person who is a shareholder of the approved stock exchange or authorised member firm concerned or a shareholder of any other body dealt with in the report by virtue of section 57 of this Act or whose interests as a creditor or client of the approved stock exchange or authorised member firm concerned or of any other such body appear to the Court to be affected, and

• (ii) cause any such report to be printed and published.

• (3) Where the Court so thinks proper it may direct that a particular part of a report made by virtue of this section be omitted from a copy forwarded or furnished under subsection (2) (b) or (2) (c) (i) of this section or from the report as printed and published under subsection (2) (c) (ii).

• (4) The Minister may lay a report forwarded under subsection (2) of this section before each House of the Oireachtas if he and the Minister for Enterprise and Employment think it proper to do so having due regard to the exigencies of the common good and the rights of any person referred to in that report and a report so laid shall be privileged.

63 Powers of Court following consideration of reports.

63.—(1) Having considered a report made under section 62 of this Act, the Court may make such order as it thinks fit in relation to matters arising from that report including—

• (a) an order of its own motion for the winding-up of an approved stock exchange or for the winding-up or dissolution of an authorised member firm,

• (b) an order for the purpose of remedying any disability suffered by any person whose interests were adversely affected by the conduct of the affairs of the approved stock exchange or authorised member firm provided that, in making any such order, the Court shall have regard to the interests of any other person who may be adversely affected by the order.

• (2) If, in the case of any approved stock exchange or authorised member firm liable to be wound up or dissolved under this Act, it appears to the Bank from—

• (a) any report made under section 62 of this Act as a result of an application by the Bank under section 57 of this Act, or

• (b) any report made by inspectors appointed by the Bank under section 64 of this Act, or

• (c) any information or document obtained by the Bank under this Act,

that a petition should be presented for the winding-up or dissolution of an approved stock exchange or authorised member firm, the Bank may, unless the approved stock exchange or authorised member firm is already being wound up or dissolved by the Court, present a petition for it to be so wound up or dissolved if the Court thinks it just and equitable for it to be so wound up or dissolved.

64 Appointment of an inspector by Bank.

64.—(1) Without prejudice to its powers under this Act, the Bank may, subject to subsection (2) of this section, appoint one or more inspectors to investigate and report on any or all of the following, namely—

• (a) the affairs and conduct of the business of an approved stock exchange or an authorised member firm or other undertaking which is, or was at the relevant time, an associated or related undertaking of an approved stock exchange or an authorised member firm, or any particular aspect of such business,

• (b) compliance of the approved stock exchange or authorised member firm with all or any of the following:

• (i) conditions or requirements or both imposed by the Bank under this Act,

• (ii) rules or codes of conduct set out or approved by the Bank under this Act,

• (iii) rules of an approved stock exchange,

• (iv) any requirement of this Act,

• (v) rules or requirements approved or imposed by the Bank with respect to clients' money and investment instruments,

• (vi) any other enactment, and

• (c) any other matter as the Bank may consider appropriate.

• (2) An appointment under subsection (1) of this section may be made by the Bank if it is of the opinion that there are circumstances suggesting that it is necessary—

• (a) for the effective administration of the law relating to approved stock exchanges and their member firms, or

• (b) for the effective discharge by the Bank of its statutory functions.

• (3) The terms of appointment of an inspector under this section may define the scope of his investigation, whether as respects the matters or the period to which it is to extend or otherwise, and in particular may limit the investigation to matters connected with particular circumstances.

• (4) Subject to the terms of appointment of an inspector, the powers conferred on him by this section shall extend to the investigation of any circumstances suggesting the existence of an arrangement or understanding which, though not legally binding, is or was observed or likely to be observed in practice and which is relevant to the purposes of his investigation.

• (5) For the purposes of any investigation under this section, sections 58 to 62, except sections 59, 60 (3) and 61 (3), shall apply with the necessary modifications or references to the affairs of the approved stock exchange or authorised member firm or to those of any other person or any associated or related undertaking, so, however, that—

• (a) the said sections shall apply in relation to all persons who are or have been officers or employees or agents of the approved stock exchange or authorised member firm or other person who appears to the inspector to have the information, document, material or explanation in his possession or under his control, and

• (b) for references to the Court, except in sections 58, 60 (4), 61 (1) and 61 (2) of this Act, there shall be substituted references to the Bank.

65 Power to make determinations for breaches of conditions or requirements.

65.—(1) Without prejudice to any other powers of the Bank under this Act or any powers of an approved stock exchange, where it appears, on the basis of information provided by an authorised officer or an inspector appointed under section 64 of this Act, that there has been a breach by an approved stock exchange or a memberfirm of a condition or requirement imposed by the Bank under any or all of the sections to which this section applies, the Bank may—

• (a) apply to the Court in a summary manner for a determination that there has been a breach of a condition or requirement, or

• (b) notify the approved stock exchange or member firm.

• (2) This section applies to the following sections, namely, sections 9 (2), 9 (9), 10 (2) (a), 11 (1), 18 (2), 18 (6), 18 (7), 18 (13) (b), 18 (14), 21 (2) (a), 21 (7), 22 (1), 26 (1), 26 (4), 31 (3), 31 (4), 33 (1), 38 (1), 43 (1) and 52 (1) of this Act.

• (3) A notification under subsection (1) (b) of this section shall—

• (a) set out reasons for the notification, and

• (b) state that the Bank shall apply to the Court in a summary manner for a determination that there has been a breach of a condition or requirement under all or any of the sections to which this section applies, unless the approved stock exchange or member firm concerned requests, in writing within 7 days of the date of the notification, that the provisions of subsections (5) to (9) of this section shall apply.

• (4) The Court, on hearing evidence in any proceedings under this section, may do all or any of the following—

• (a) issue a reprimand to the approved stock exchange or member firm,

• (b) direct that the approved stock exchange or member firm concerned shall pay to the Bank a specified sum, not to exceed £500,000, in respect of any breach of a condition or requirement,

• (c) dismiss the application or make any other order as may be appropriate,

• (d) make such order as to costs as it thinks fit.

• (5) Where a request in writing has been made to it under subsection (3) of this section, the Bank may appoint a Committee to inquire into whether or not there has been a breach of a condition or requirement under a section referred to in subsection (2) of this section.

• (6) A Committee appointed under subsection (5) of this section shall be appointed by the Bank from a panel established from time to time by the Minister, with the consent of the Minister for Enterprise and Employment, for that purpose and the provisions of the Second Schedule to this Act shall apply to the Committee and to the panel.

• (7) Following an inquiry by a Committee appointed under subsection (5) of this section, that Committee may dismiss the application or may make a determination that there has been a breach of a condition or requirement and may do all or any of the following—

• (a) issue a reprimand to an approved stock exchange or a member firm,

• (b) direct that an approved stock exchange or member firm shall pay the Bank a specified sum, not to exceed £500,000, in respect of any breach of a condition or requirement,

• (c) publish such details as it deems proper concerning a determination made under this subsection in the Iris Oifigiúil and in one or more newspapers circulating in the State,

• (d) make such order as to costs as it thinks fit.

• (8) An approved stock exchange or a member firm may appeal to the Court against a determination of the Committee issued under subsection (7) of this section.

• (9) A sum due under this section may be recovered in any court of competent jurisdiction as a simple contract debt.

66 Search and seizure.

66.— (1) If a Judge of the District Court is satisfied on the sworn information of an authorised officer or an inspector appointed under section 64 of this Act that there are reasonable grounds for suspecting that there are on any premises any books or documents—

• (a) of which production has been required under this Act, and

• (b) which have not been produced in compliance with that requirement,

the Judge may issue a warrant authorising any member of the Garda Síochána, together with any other persons named in the warrant and any other members of the Garda Síochána, at any time or times within one month from the date of the warrant, on production if so requested of the warrant, to enter the premises specified in the information (using such force as is reasonably necessary for the purpose) and to search the premises or other place specified in the warrant and—

• (i) take possession of any books or documents appearing to be such books or documents as aforesaid, or

• (ii) to take, in relation to any books or documents so appearing, any other steps which may appear necessary for preserving them and preventing interference with them.

• (2) Any books or documents of which possession is taken under this section may be retained for a period of three months or, if within that period there are commenced any such criminal proceedings as are mentioned in section 69 (1) (a) of this Act (being proceedings to which the books or documents are relevant), until the conclusion of those proceedings.

• (3) A person who—

• (a) obstructs or interferes with a member of the Garda Síochána acting under the authority of a warrant issued under this section, or

• (b) is found on the premises or at the place specified in the warrant by a member of the Garda Síochána acting as aforesaid and who fails or refuses to give the member his name and address when required to do so or gives a name and address that is false or misleading, or

• (c) who obstructs a member of the Garda Síochána in the lawful exercise of a power conferred on him to take possession of any books or documents,

shall be guilty of an offence.

67 Admissibility in evidence of reports of inspectors.

67.—A document purporting to be a copy of a report of an inspector appointed under the provisions of this Part shall be admissible in any civil proceedings as evidence—

• (a) of the facts set out therein without further proof unless the contrary is shown, and

• (b) of the opinion of the inspector in relation to any matter contained in the report.

68 Privilege.

68.—(1) Nothing in this Act shall compel the disclosure by any person of any information which he would, in the opinion of the Court, be entitled to refuse to produce on the grounds of legal professional privilege or authorise the taking possession of any document containing such information which is in his possession.

• (2) The publication, in pursuance of any provision of this Part, of any report, information, book or document relating to inspectors appointed under this Part shall be privileged.

69 Consent to publication of information.

69.—(1) No information, book or document relating to a person which has been obtained under section 66 of this Act shall, without the previous consent in writing of that person, be published or disclosed, except to an appropriate authority, unless the publication or disclosure is required for all or any of the following, namely—

• (a) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings pursuant to, or arising out of, any enactments under which the Bank exercises statutory functions or any criminal proceedings for an offence entailing misconduct in connection with the management of the affairs of a person or misapplication or wrongful retainer of its property;

• (b) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Act with respect to reports made by inspectors appointed thereunder by the Court or the Bank;

• (c) with a view to the institution by the Bank of proceedings for the winding-up under this Act of the person or otherwise for the purposes of proceedings instituted by the Bank for that purpose;

• (d) for the purposes of proceedings under section 66 of this Act.

• (2) A person who publishes or discloses any information, book or document in contravention of this section shall be guilty of an offence.

• (3) For the purposes of this section “appropriate authority” includes any or all of the following, namely—

• (a) the Bank;

• (b) a person authorised by the Governor of the Bank;

• (c) an inspector appointed under this Act;

• (d) a Committee appointed under section 65 of this Act;

• (e) the Minister;

• (f) the Minister for Enterprise and Employment;

• (g) any court of competent jurisdiction;

• (h) a competent authority for the purposes of Council Directives 93/22/EEC of 10 May, 1993(1), 93/6/EEC of 15 March, 1993⁽¹⁾ or 77/780/EEC of 12 December, 1977⁽²⁾ as amended by Council Directive 89/646/EEC of 15 December, 1989⁽³⁾.

70 Offences and penalties.

70.—(1) A person who is guilty of an offence under section 8 (3), 9 (15), 14 (8), 15 (l)(b), 17 (1), 17 (2), 18 (16), 24 (9),27(l)(b),31 (1),31 (2), 31 (16), 35(1), 35(3), 36 (4), 37 (6), 47 (2), 52 (3), 52 (7), 54 (6), 66 (3), 69 (2), 70 (4), 70 (7) or 70 (8), shall be liable—

• (a) on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court in the case of an individual, to imprisonment for a term not exceeding 12 months or both, or

• (b) on conviction on indictment, to a fine not exceeding £1,000,000 or, at the discretion of the Court in the case of an individual, to imprisonment for a term not exceeding 10 years or both.

• (2) Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Director of Public Prosecutions or tile Bank.

• (3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for any offence under this Act may be instituted within two years from the date of the discovery of the offence.

• (4) Where an offence under this Act is committed by an approved stock exchange or member firm or body corporate or by a partnership and is proved to have been committed with the consent or connivance of, or to be attributable to, or to have been facilitated by any neglect on the part of any officer or employee of that approved stock exchange or member firm or person purporting to act on behalf of the approved stock exchange or member firm or body corporate or partnership, that officer or employee shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence:

Provided, however, that a person shall not be sentenced to imprisonment for such an offence unless in the opinion of the Court the offence was committed wilfully.

• (5)
• (a) Where, on an application made in a summary manner by the Bank, the court is of the opinion that there has occurred or is occurring—

• (i) a contravention of this Act,

• (ii) a failure to comply with a condition or requirement imposed by the Bank in relation to an authorisation of a member firm or the approval of a stock exchange or with a direction issued by the Bank under section 29 of this Act,

the Court may, by order, prohibit the continuance of the contravention or failure by the person or persons concerned.

• (b) The Court when considering the application may make such interim or interlocutory order as it considers appropriate.

• (c) The foregoing provisions of this section are without prejudice to the statutory functions of the Bank.

• (d) Where the Court is satisfied, because of the nature or circumstances of the case or otherwise in the interests of justice, that it is desirable, the whole or any part of proceedings under this section may be held otherwise than in public.

• (6) If the contravention, breach or failure in respect of which a person was convicted under subsection (1) or (4) of this section is continued after conviction, he shall be guilty of a further offence on every day on which the contravention, breach or failure continues and for each such offence the person shall be liable on summary conviction to a fine not exceeding £1,000 or on conviction on indictment to a fine not exceeding £5,000.

• (7) A person who, in purported compliance with any provision of this Act or any regulation thereunder, provides an answer or explanation, makes a statement or produces, lodges or delivers any return, report, certificate, balance sheet or other document false in a material particular, knowing it to be false, or recklessly provides an answer or explanation, knowingly withholds or omits information, makes a statement or produces, lodges or delivers any such document false in a material particular shall be guilty of an offence.

• (8)
• (a) An officer of an approved stock exchange or member firm who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of any record or document affecting or relating to the property or affairs of the approved stock exchange or member firm, or makes or is privy to the making of a false entry therein, shall, unless he proves that he had no intention to defeat the law, be guilty of an offence.

• (b) Any such person as is mentioned in paragraph (a) of this subsection who fraudulently disposes of, alters or makes an omission in any such record or document, or who is privy to the fraudulent disposal of, altering or making ofan omission in any such record or document shall be guilty of an offence.

• (9) Where there is a contravention of a provision of this Act applicable to a partnership each partner may be charged alone or jointly with any one or more of the partners with any offence in respect of such contravention and on conviction shall be liable for the penalty thereupon imposed.

• (10) In any proceedings for an offence under a section of this Act applicable to partnerships it shall be a defence for a partner charged to prove—

• (a) that the commission of the offence was due to a mistake or the reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and

• (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his control.

• (11) Nothing in this Act or any other enactment, and no rule of law, shall preclude the prosecution of a partner for an offence of which another partner or any other person has been previously charged or convicted.

FIRST SCHEDULE Supplementary Provisions in Relation to a Direction by the Bank Under section 29 of This Act

• (a) at the end of the period of operation specified by the Court,

• (b) on the making by the Court of an order for termination on the application of the Bank,

• (c) on the making of a winding-up order in respect of the stock exchange or member firm or, where a member firm is constituted as an unincorporated body of persons, a dissolution order, or

• (d) on the making by the Court of an order for termination where the Court considers that the circumstances that gave rise to the direction have ceased to exist and that it would be unjust and inequitable not to make the order,

whichever first occurs.

• (a) the stock exchange or member firm to whom the direction has been given shall take all necessary steps to secure that its assets or client or investor assets wherever held, are not depleted without the prior authorisation of the Bank, and

• (b) the Bank may direct a credit institution or any institution exempt under section 7 of the Central Bank Act, 1971,or any other financial institution which holds an account of the stock exchange or member firm to which the direction has been given, to suspend the making of payments from the account without the prior authorisation of the Bank.

SECOND SCHEDULE Supplementary Provisions in Relation to a Committee Appointed Under section 65of This Act

• (a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and

• (b) the compelling of the production of documents,

and a summons signed by the Chairperson of the Committee or by such other member of the Committee as may be authorised by the Committee may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents.

• (a) a person on being duly summonsed to attend before a Committee established for the purposes of section 65 of this Act makes default in attending, or

• (b) a person, being in attendance as a witness before a Committee refuses to take an oath lawfully required by that Committee to be taken, or to produce any document in his power or control lawfully required by that Committee to be produced by him or to answer any question to which the Committee may lawfully require an answer, or

• (c) a person, being in attendance before a Committee does anything which, if the Committee were a court of law having power to commit for contempt, would be contempt of court,

such person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

Footnotes