Counterfeiting Act 2021

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Counterfeiting Act 2021.

(2) Parts 1 and 2 and sections 30, 32 and 33 shall come into operation on such day or days as the Minister for Justice may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

(3) Part 3 and sections 28, 29 and 31 shall come into operation on such day or days as the Minister for Finance following consultation with the Minister for Justice may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

PART 2 Amendment to Criminal Justice (Theft and Fraud Offences) Act 2001

2. Definition (Part 2)

2. In this Act, “Act of 2001” means the Criminal Justice (Theft and Fraud Offences) Act 2001.

3. Amendment of section 32 of Act of 2001

3. Section 32 of the Act of 2001 is amended—

(a) in subsection (1)—

(i) by the substitution of the following definitions for the definitions of “currency note” and “coin”:

“ ‘currency note’ means a currency note lawfully issued or customarily used as money in the State or in any other state or a territorial unit within it and includes a currency note denominated in euro;

‘coin’ (other than in relation to a coin referred to in the definition of ‘designated’ and a coin to which subsection (2)(aa) applies) means a coin lawfully issued or customarily used as money in the State or in any other state or a territorial unit within it and includes a coin denominated in euro or in cent;”,

and

(ii) by the insertion of the following definitions:

“ ‘counterfeiting instrument’ includes any instrument, article, computer programme or data, and any other means specially designed or adapted for making a counterfeit of a currency note or coin;

‘currency authority’ means an authority or body referred to in paragraph (a), (b) or (c) of the definition of ‘lawfully issued’;

‘currency instrument’ includes any instrument, article, computer programme or data, and any other means specially designed or adapted for making a currency note or coin;

‘designated’ means, in relation to a note or coin, designated for circulation as legal tender but not yet lawfully issued;

‘Directive 2014/62/EU’ means Directive 2014/62/EU of the European Parliament and of the Council of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA;

‘security feature’ includes a hologram, watermark or other component of currency which serves to protect against counterfeiting;”,

(b) in subsection (2)—

(i) in paragraph (a), by the substitution of “description,” for “description, or”, and

(ii) by the insertion of the following paragraph after paragraph (a):

“(aa) if it is a note or coin which has been manufactured by use of legal facilities or materials in violation of the rights or the conditions under which a currency authority may issue currency notes or coins, or”,

(c) by the insertion of the following subsection after subsection (2):

“(2A) A reference in section 34, 35, 36, 37 and 38 to a counterfeit of a currency note or coin shall be deemed to include a reference to a designated note or coin.”,

and

(d) by the insertion of the following subsection after subsection (3):

“(4) A word or expression used in this Part that is also used in Directive 2014/62/EU has, unless the contrary intention appears, the same meaning in this Part as it has in that Directive.’’.

4. Amendment of section 33 of Act of 2001

4. Section 33 of the Act of 2001 is amended by the insertion of the following subsection after subsection (1):

“(1A) A person who makes or alters a designated note or coin, with the intention that he or she or another shall pass or tender it as genuine, is guilty of an offence.”.

5. Amendment of section 34 of Act of 2001

5. Section 34 of the Act of 2001 is amended—

(a) by the insertion of the following subsection after subsection (2):

“(2A) A person who receives, obtains or transports anything which is, and which he or she knows or believes to be, a counterfeit of a currency note or coin with the intention that he or she or another shall pass or tender it as genuine is guilty of an offence.”,

and

(b) in subsection (3)(b), by the substitution of “subsection (2) or (2A)” for “subsection (2)”.

6. Amendment of section 36 of Act of 2001

6. The Act of 2001 is amended by the substitution of the following for section 36:

“36. (1) A person who makes, receives, obtains or has in his or her custody or under his or her control a currency instrument, counterfeiting instrument or security feature, with the intention that he or she or another shall use the currency instrument, counterfeiting instrument or security feature for the purpose of making a counterfeit of a currency note or coin with the intention that it be passed or tendered as genuine, is guilty of an offence.

(2) A person who, without lawful authority or excuse, has in his or her custody or under his or her control a currency instrument, counterfeiting instrument or security feature is guilty of an offence.

(3) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding—

(a) in the case of an offence under subsection (1), 10 years, or

(b) in the case of an offence under subsection (2), five years.”.

7. Amendment of section 37 of Act of 2001

7. Section 37 of the Act of 2001 is amended by the substitution of the following subsection for subsection (1):

“(1) A person who imports or exports a counterfeit of a currency note or coin, which he or she knows or believes to be a counterfeit of a currency note or coin, with the intention that he or she or another shall pass or tender it as genuine is guilty of an offence.”.

8. Amendment of section 38 of Act of 2001

8. The Act of 2001 is amended by the substitution of the following section for section 38:

“38. (1) An Irish citizen who does an act in a place outside the State that, if done in the State, would constitute—

(a) an offence under section 33, 34, 35, 36, 37 or 38A, or

(b) an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (a),

is guilty of an offence.

(2) Subject to subsection (4), a person other than an Irish citizen who does an act in a place outside the State that, if done in the State, would constitute—

(a) an offence under section 33, 34, 35, 36, 37 or 38A, or

(b) an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (a),

is guilty of an offence.

(3) A person guilty of an offence under subsection (1) or (2) is liable on conviction on indictment to the penalty to which he or she would have been liable if he or she had done the act that constitutes the offence in the State.

(4) Subsection (2) shall apply where the counterfeit of a currency note or coin to which the act related was a counterfeit of a currency note denominated in euro or a coin denominated in euro or in cent.

(5) Where a person is charged with an offence under subsection (2), no further proceedings in the matter (other than a remand in custody or on bail) may be taken except by, or with the consent of, the Director of Public Prosecutions.

(6) The Director of Public Prosecutions may take proceedings for an offence under subsection (2) if satisfied that—

(a) a request for a person’s surrender for the purpose of trying him or her for an offence in respect of the conduct concerned has been made by a state in relation to which Part II of the Extradition Act 1965 applies, and that request has been finally refused (whether as a result of a decision of a court or otherwise),

(b) a European arrest warrant has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of the conduct concerned, and a final determination has been made that the European arrest warrant should not be endorsed for execution in the State under the European Arrest Warrant Act 2003 or that the person should not be surrendered to the issuing state concerned, or

(c) a counterfeit of a currency note denominated in euro or a coin denominated in euro or in cent related to the offence has been detected in the State.

(7) Proceedings for an offence under subsection (1) or (2) may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.”.

9. Liability for offences by body corporate, etc. (Part 5)

9. The Act of 2001 is amended by the insertion of the following section after section 38:

“Liability for offences by body corporate, etc. (Part 5)

38A. (1) Where a relevant offence is committed for the benefit of a body corporate by a relevant person and the commission of the relevant offence is attributable to the failure, by a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, to exercise, at the time of the commission of the relevant offence and in all the circumstances of the case, the requisite degree of supervision or control of the relevant person, the body corporate shall be guilty of an offence.

(2) In proceedings for an offence under subsection (1), it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

(3) Where a relevant offence is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(4) Where the affairs of a body corporate are managed by its members, subsection (3) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(5) Subsection (1)—

(a) is without prejudice to the other circumstances, under the general law, whereby acts of a natural person are attributed to a body corporate resulting in criminal liability of that body corporate for those acts, and

(b) does not exclude criminal proceedings against natural persons who are involved as perpetrators, inciters or accessories in an offence referred to in that subsection.

(6) A person guilty of an offence under subsection (1) is liable on conviction on indictment to a fine.

(7) In this section—

‘relevant person’, in relation to a body corporate, means—

(a) a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, or

(b) an employee, subsidiary or agent of the body corporate;

‘relevant offence’ means an offence—

(a) under section 33, 34, 35, 36 or 37, or

(b) of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (a);

‘subsidiary’, in relation to a body corporate, has the same meaning as it has in the Companies Act 2014.”.

10. Amendment of section 39 of Act of 2001

10. Section 39 of the Act of 2001 is amended—

(a) in subsection (1)—

(i) by the substitution of the following definition for the definition of “designated body”:

“ ‘designated body’ means—

(a) a credit institution,

(b) within the limits of its payment activity, a payment service provider,

(c) An Post, and

(d) any other person engaged in the processing and distribution to the public of currency notes or coins, or both, including—

(i) a person whose activity consists of exchanging currency notes and coins of different currencies, including a person or body authorised under the Central Bank Act 1997 to carry on bureau de change business,

(ii) a transporter of funds, and

(iii) a person who is engaged on a secondary basis in the processing and distribution to the public of currency notes via automated teller machines (ATMs), within the limit of that secondary basis;”,

and

(ii) by the insertion of the following definitions:

“‘credit institution’ means a credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No. 575/2013[^8] of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012;

‘transporter of funds’ has the same meaning as it has in Regulation (EC) No. 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting, as amended by Council Regulation (EC) No. 44/2009 of 18 December 2008;

‘payment service provider’ means a person referred to in Regulation 6(1) of the European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018);”,

(b) by the insertion of the following subsection after subsection (1):

“(1A) A reference in this section to a note or coin does not include a reference to a note or coin that is denominated, or purports to be denominated, in euro or in cent.”,

and

(c) by the deletion of subsection (8).

11. Amendment of section 58 of Act of 2001

11. Section 58(1) (as amended by section 7 of the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021) of the Act of 2001 is amended, in paragraph (a), by the substitution of “(other than Part 5 or 6)” for “(other than Part 6)”.

PART 3 Obligations of Relevant Persons in Respect of Ensuring Authenticity and Fitness of Euro Banknotes and Coins

12. Definitions (Part 3)

12. (1) In this Part—

“Central Bank” means the Central Bank of Ireland;

“credit institution” means a credit institution as defined in point (1) of Article 4(1) of Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012;

“Euro Banknote Decision” means Decision ECB/2010/14 of the European Central Bank of 16 September 2010 on the authenticity and fitness checking and recirculation of euro banknotes, as amended by Decision ECB/2012/19 of 7 September 2012 and by Decision ECB/2019/2195 of 5 December 2019;

“Euro Coin Regulation” means Regulation (EU) No. 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation;

“Euro Counterfeiting Regulation” means Regulation (EC) No. 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting, as amended by Council Regulation (EC) No. 44/2009 of 18 December 2008;

“payment service provider” means a person referred to in Regulation 6(1) of the European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018);

“relevant person” means—

(a) a credit institution,

(b) within the limits of its payment activity, a payment service provider,

(c) An Post, and

(d) any other person engaged in the processing and distribution to the public of notes or coins, or both, including—

(i) a person whose activity consists of exchanging notes and coins of different currencies, including a person or body authorised under the Central Bank Act 1997 to carry on bureau de change business,

(ii) a transporter of funds, and

(iii) a person who is engaged on a secondary basis in the processing and distribution to the public of notes via automated teller machines (ATMs), within the limit of that secondary basis.

(2) A word or expression used in this Part that is also used in the Euro Banknote Decision, the Euro Coin Regulation or the Euro Counterfeiting Regulation has, unless the contrary intention appears, the same meaning in this Part as it has in the Euro Banknote Decision, the Euro Coin Regulation or the Euro Counterfeiting Regulation as the case may be.

13. Functions and powers of the Central Bank

13. (1) The Central Bank shall monitor, and take all necessary measures to ensure, compliance by relevant persons with their obligations under—

(a) the Euro Banknote Decision,

(b) the Euro Coin Regulation, and

(c) the Euro Counterfeiting Regulation.

(2) Without prejudice to the generality of subsection (1), the Central Bank may verify—

(a) the procedures governing the operation and control by relevant persons of banknote and coin processing machines, and

(b) the treatment of, and any manual authenticity and fitness checking of, euro notes and euro coins by relevant persons.

(3) The Central Bank shall perform—

(a) the controls referred to in Article 6, and

(b) the functions referred to in Articles 8, 9, 11 and 12,

of the Euro Coin Regulation.

14. Central Bank may impose requirement on relevant person

14. (1) The Central Bank may impose a requirement on a relevant person:

(a) where Article 6.7 of the Euro Coin Regulation applies in relation to the relevant person, to take such measures, within such time limit, as are specified in the requirement and as the Central Bank considers necessary to ensure that the non-compliance by the relevant person with the Regulation is rectified promptly;

(b) to comply with a condition of a permission granted by the Central Bank under Article 7.1 of the Euro Banknote Decision;

(c) where Article 10.3 of the Euro Banknote Decision applies in relation to the relevant person—

(i) to adopt such corrective measures, within such time limit, as are specified in the requirement and as the Central Bank considers necessary to ensure that the non-compliance by the relevant person with the provisions concerned of the Decision is rectified promptly, or

(ii) prohibiting the relevant person from recirculating the euro banknote denomination of the series concerned.

(2) Where a relevant person is the subject of a requirement by the Eurosystem under Article 8.4 of the Euro Banknote Decision, the requirement shall be deemed to be a requirement of the Central Bank imposed on the relevant person under this section, and this Part shall apply accordingly.

15. Regulations (Part 3)