CONTROL OF EXPORTS ACT 2023

• (b) where the adjudicator is not so satisfied, affirm the decision to which the appeal relates.

• (2) An adjudicator shall give notice of his or her decision under this section, as soon as practicable after it is made, to the Minister, the appellant and such other parties as the adjudicator may determine.

• (3) The decision of the adjudicator under this section shall be final save that an appeal from that decision may be made in accordance with section 50.

Chapter 4 Exceptional provisions regarding sensitive material and evidence

46. Treatment of certain material of relevance to security or public order of State in appeal against decision under section 43

46. (1) Where the adjudicator is satisfied by information on oath or affirmation of the Minister, or of an officer of the Minister appointed by the Minister to provide such information, that there are reasonable grounds for believing that the disclosure to an appellant of relevant material would create a risk to the security or public order of the State, the adjudicator may—

• (a) where satisfied that the relevant material can be redacted in a way that removes that risk, direct the Minister to provide the relevant material to the appellant subject to such redactions,

• (b) where satisfied that the relevant material or part thereof can be summarised or described in a way that removes that risk, direct the Minister to provide the appellant with such a summary or description, and

• (c) take the relevant material into account in making a decision under section 45, regardless of the extent to which the relevant material is provided to the appellant.

• (2) The information on oath or affirmation provided to the adjudicator under subsection (1) shall not, without the express authorisation of the Minister, be disclosed by any person to any person other than a party to the appeal.

• (3) When providing information on oath or affirmation under subsection (1), the Minister may request the adjudicator to direct that—

• (a) the information shall not be provided to a party to the appeal, and

• (b) a summary of the information, provided to the adjudicator with the request, shall be provided to the party.

• (4) The adjudicator shall, if satisfied that the summary of the information provided with the Minister’s request under subsection (3) is sufficiently clear and detailed to allow a party to the appeal effectively to challenge the basis on which, or way in which, the relevant material is provided to the party, direct that—

• (a) the information shall not be provided to a party to the appeal, and

• (b) the summary shall be provided to the party.

• (5) The Minister shall comply with a direction of the adjudicator under subsection (1) or (4), as the case may be.

• (6) A person, other than the Minister or an adjudicator, who contravenes subsection (2) shall be guilty of an offence.

47. Appeals to be held otherwise than in public

47. (1) Subject to subsection (3), proceedings in relation to an appeal under section 43 before an adjudicator shall be conducted otherwise than in public, and the adjudicator shall exclude from the hearing of any proceedings relating to the appeal before him or her all persons except—

• (a) a person providing services to the adjudicator, whose presence is necessary for the adjudicator to deal with the proceedings in accordance with this Act,

• (b) the parties to the appeal,

• (c) the legal representatives of the parties to the appeal, and

• (d) a witness whose evidence is relevant to the appeal, for as long as the witness’s presence is required for the purpose of providing such evidence.

• (2) This subsection shall apply to proceedings relating to an appeal under section 43 before an adjudicator where the Minister—

• (a) is satisfied that conducting such proceedings, or specified matters forming part of such proceedings, in public would not create a risk to the security or public order of the State, and

• (b) gives notice to the adjudicator of that fact.

• (3) Where subsection (2) applies to proceedings, the adjudicator shall—

• (a) as soon as practicable after receiving a notification under paragraph (b) of subsection (2), give notice to the appellant of that fact, and

• (b) conduct proceedings relating to the appeal or to the specified matters forming part of the appeal, as the case may be, to which subsection (2) applies, in public unless the adjudicator believes that there are good and sufficient reasons to conduct such proceedings otherwise than in public.

48. Confidentiality of proceedings

48. (1) A person shall not disclose any information obtained—

• (a) by a party to an appeal before an adjudicator to which section 47(2) does not apply, and

• (b) as a result of such an appeal,

to any person other than—

• (i) a party to the appeal,

• (ii) a legal representative of a party to the appeal,

• (iii) the adjudicator,

• (iv) a witness whose evidence is relevant to the appeal, to the extent such disclosure is necessary for the witness to give such evidence, or

• (v) where an appeal is taken under section 50, to—

• (I) the court,

• (II) a party to the appeal,

• (III) a legal representative of a party to the appeal, or

• (IV) a witness whose evidence is relevant to the appeal, to the extent such disclosure is necessary for the witness to give such evidence.

• (2) A person who contravenes subsection (1) shall be guilty of an offence.

49. Designation of legal representatives in respect of certain matters

49. (1) The Minister may by order designate a person (in this section referred to as an “approved legal representative”) for the purposes of this section.

• (2) The Minister shall not designate a person under subsection (1) unless the Minister is satisfied that—

• (a) the person is a person referred to in paragraph (a) or (b) of section 39(2),

• (b) the person has the requisite knowledge and experience to act as an approved legal representative, and

• (c) it is appropriate for the person, having regard to the security or public order of the State, to act as an approved legal representative, including by reference to such clearance, verification or background checks as may be prescribed.

• (3) Where—

• (a) the Minister is satisfied that an appeal under section 43 or a specified matter forming part of such appeal is likely to create a particularly sensitive and serious risk to the security or public order of the State, and

• (b) section 47(2) does not apply to the appeal or specified matter forming part of the appeal, as the case may be,

the Minister may specify that this section applies to that appeal or to that specified matter.

• (4) The Minister shall, as soon as practicable after specifying that this section applies to an appeal, or to a specified matter forming part of an appeal, give notice to the parties to the appeal of that fact.

• (5) No person other than an approved legal representative may represent a party to an appeal—

• (a) where this section applies to an appeal generally, before a court or adjudicator in relation to that appeal,

• (b) where this section applies to a specified matter forming part of an appeal, before a court or adjudicator, as the case may be, in respect of the matter, or

• (c) where this section applies to an appeal generally or to a specified matter forming part of an appeal, before a court in an application under section 51 relating to that appeal.

• (6) A person shall cease to be an approved legal representative on and from the date—

• (a) the person ceases to be qualified to practice as a barrister or solicitor in the State, or

• (b) the Minister revokes the order designating the person for the purposes of this section.

Chapter 5 Appeal Against Decision of Adjudicator

50. Appeal against decision of adjudicator

50. (1) An appellant in relation to whose appeal a decision under section 45(1) is made may, by leave of the High Court, appeal to that court on a point of law not later than 30 days from the date on which the party was notified of the decision.

• (2) The High Court shall, in determining an appeal under this section, act as expeditiously as possible consistent with the administration of justice.

• (3) Rules of court may make provision for the expeditious hearing of appeals under this section.

• (4) The decision of the High Court in an appeal taken under this section is final and no appeal lies from the decision to the Court of Appeal except with the leave of the High Court, which shall only be granted if the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

51. Application to suspend effect of relevant decision

51. Where an appeal under section 50 relates to a decision under section 38 concerning a relevant decision referred to in paragraph (a) of the definition of relevant decision in section 2, the bringing of the appeal does not suspend the effect of the relevant decision unless—

• (a) the appellant, in addition to making an appeal under section 50, applies to the High Court to have the effect of that relevant decision suspended until such time as the appeal is determined, and

• (b) the High Court, where it considers it appropriate to do so having regard to all the circumstances of the case, orders that the effect of the relevant decision, or such particular effects of the relevant decision as the court may order, are suspended until the appeal is determined, or until such other time as the court may order.

52. Treatment of evidence in relation to appeals against decision of adjudicator

52. (1) In an appeal under section 50 or an application under section 51 that relates to or involves relevant material, the High Court may—

• (a) where it is satisfied by information on oath or affirmation of the Minister, or of an officer of the Minister appointed by the Minister to provide such information, that there are reasonable grounds for believing that the disclosure to a party to the appeal of relevant material would create a risk to the security or public order of the State—

• (i) where satisfied that the relevant material can be redacted in a way that removes that risk, direct the Minister to provide the relevant material to the appellant subject to such redactions, or

• (ii) where satisfied that the relevant material or part thereof can be summarised or described in a way that removes that risk, direct the Minister to provide the appellant with such a summary or description,

• (b) where it is not satisfied by the information on oath or affirmation referred to in paragraph (a) that the disclosure to a party of relevant material would create a risk to the security or public order of the State, direct that the relevant material, or such part of that material as the High Court may direct, be provided to the party, and

• (c) take the relevant material into account in making its decision in relation to the appeal or application, as the case may be, regardless of the extent to which, or ways in which, the relevant material is provided to the party in accordance with this section.

• (2) The Minister shall comply with a direction of the High Court under subsection (1).

• (3) The information on oath or affirmation provided to the High Court under subsection (1) shall not, without the express authorisation of the Minister, be disclosed by the court, an officer or agent of the court, or any other person, to any person other than a party to the appeal.

• (4) When providing information on oath or affirmation under subsection (1), the Minister may apply to the High Court ex parte for an order that—

• (a) the information shall not be provided to a party to the appeal, and

• (b) a summary of the information, provided to the High Court with the application, shall be provided to the party.

• (5) The High Court shall grant the order applied for under subsection (4) if it is satisfied that—

• (a) the Minister has grounds for believing that providing the information on oath or affirmation under subsection (1) to a party would create a risk to the security or public order of the State, and

• (b) the summary provided with the application for that order is sufficiently clear and detailed to allow the party effectively to challenge the basis on which, or way in which, the information on oath or affirmation is not being provided to it, or provided to it in part, as the case may be,

and the Minister shall comply with such an order.

• (6) A person, other than the Minister or a judge, who contravenes subsection (3) shall be guilty of an offence.

53. Hearing of matters otherwise than in public

53. The High Court may hear the whole or part of any proceedings before it under this Part otherwise than in public if that court considers that the security of the State or the interests of justice so require.

54. Proceedings before court other than High Court

54. Where a court other than the High Court deals with an appeal in relation to which leave is granted under section 50(4), then sections 51, 52 and 53 shall apply to the appeal subject to the modification that a reference in those sections to the High Court is a reference to the court before which the appeal is heard and to any other necessary modifications.

PART 6 Enforcement

55. Interpretation for Part 6

55. (1) In this Part—

“authorised officer” means a person appointed under section 56 to be an authorised officer;

“compliance notice” means a compliance notice given under section 61; “condemnation proceedings” has the meaning given to it by section 65(1); “notice of claim” has the meaning given to it by section 64(6); “premises” includes vehicle, vessel, ship and railway carriage;

“specified date” means—

• (a) subject to paragraph (b), the date specified in the compliance notice, which shall not be earlier than the end of the period within which an appeal may be brought under section 62, or

• (b) where an appeal is brought under section 62, on the later of the date on which the compliance notice is confirmed on appeal or the appeal is withdrawn, or the date specified in the compliance notice as the date on which it is to come into effect;

“vehicle” means any conveyance in or by which any person or thing, or both, is or are, as the case may be, transported which is designed for use on land, in water or in the air, or in more than one of those ways, and includes—

• (a) a part of a vehicle,

• (b) an article designed as a vehicle but not capable of functioning as a vehicle, and

• (c) any container, trailer, tank or any other thing which is or may be used for the storage of goods in the course of carriage and is designed or constructed to be placed on, in, or attached to, any vehicle.

• (2) A reference in this Part to a compliance notice shall, if the compliance notice has been amended under section 61(4), be construed as a reference to the compliance notice as so amended.

56. Authorised officers

56. (1) The Minister may appoint—

• (a) such and so many of the officers of the Minister as he or she considers appropriate to be an authorised officer for the purposes of this Act, and

• (b) such other person as he or she deems appropriate to be an authorised officer for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as he or she, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, may determine, for the purposes of this Act.

• (2) Each authorised officer shall be given a warrant of appointment and, when performing any function imposed under this Act, shall, on request by any person affected thereby, produce the warrant or a copy thereof, together with a form of personal identification to that person for inspection.

• (3) An appointment under this section shall cease—

• (a) if the Minister revokes the appointment in writing,

• (b) if the person appointed ceases to be an officer of the Minister, or

• (c) if the appointment is for a fixed period, on the expiry of that period.

57. Powers of authorised officer to request information and enter premises

57. For the purposes of this Act, an authorised officer who has reasonable grounds for believing a person is engaged in a relevant activity may—

• (a) by notice given to any person who the authorised officer has reasonable grounds for believing is involved in a relevant activity, require that person—

• (i) to furnish to him or her any information, records or other items referred to in section 58 in the person’s possession which the authorised officer reasonably requires and specified in the notice, within the period specified in the notice, and

• (ii) where appropriate to attend before the authorised officer to answer such questions as the authorised officer may ask relative to those matters and to make a declaration of the truth of the answers to those questions,

• (b) following the receipt of information, records or evidence under paragraph (a), by notice given, require that person to furnish such further information, records or other items that the authorised officer may reasonably require and specified in the notice, within the period specified in the notice, or

• (c) subject to section 59, enter (if necessary by the use of reasonable force) at all reasonable times any premises—

• (i) that he or she has reasonable grounds for believing, has been or is being used in connection with a relevant activity, or

• (ii) at which, he or she has reasonable grounds for believing, records or documents relating to a relevant activity are kept.

58. Powers of authorised officer on entry

58. (1) Where an authorised officer is carrying out a function in accordance with section 57, he or she may—

• (a) at a premises referred to in section 57(c), request the production of an authorisation or such other documents as the authorised officer reasonably requires,

• (b) conduct, or cause to be conducted, such examinations and inspections of—

• (i) any relevant item,

• (ii) packaging of a relevant item,

• (iii) any article or substance used in connection with the manufacture, labelling, packaging or storage of a relevant item,

• (iv) production, test or analytical equipment, components, instruction manuals or other technical data related to a relevant item, or

• (v) any machinery, plant, records or equipment, including electronic equipment,

found at the premises as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,

• (c) require any person at the premises to—

• (i) give to the authorised officer such assistance and information, including access to any electronic information system, and

• (ii) produce to the authorised officer—

• (I) such labels or packaging relating to relevant items, and

• (II) books, documents or other records (and in the case of documents or records stored in non-legible form, a legible reproduction thereof),

that are in that person’s possession or procurement, as the authorised officer may reasonably require for the purposes of his or her functions under this Act,

• (d) require any person at the premises to answer such questions as the authorised officer may ask relative to any matter in connection with compliance with this Act,

• (e) for the purposes of analysis and examination, take samples of—

• (i) any substance or product—

• (I) that is a relevant item, or

• (II) that he or she has reasonable grounds for believing is a relevant item,

• (ii) packaging relating to any such substance or product, or

• (iii) any article or substance used in the manufacture, labelling, packaging or storage of any such substance or product,

found at the premises,

• (f) direct that any—

• (i) substance or product—

• (I) that is a relevant item, or

• (II) that he or she has reasonable grounds for believing to be a relevant item,

or

• (ii) packaging relating to any such substance or product,

that is found at the premises not be moved from the premises without his or her consent,

• (g) secure for later inspection a premises entered under section 57(c) or pursuant to a warrant under section 59, or any part of the premises, in which—

• (i) any substance or product—

• (I) that is a relevant item, or

• (II) that he or she has reasonable grounds for believing is a relevant item,

• (ii) packaging relating to any such substance or product, or

• (iii) any article or substance used in the manufacture, labelling, packaging or storage of any such substance or product,

is found or ordinarily kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Act,

• (h) take possession of, remove from the premises and retain (for such period as he or she considers reasonably necessary for the purposes of his or her functions under this Act) for examination and analysis—

• (i) any substance or product that is a relevant item or that he or she has reasonable grounds for believing is a relevant item,

• (ii) packaging relating to any such substance or product, or

• (iii) any article or substance used in the manufacture, labelling, packaging or storage of any such substance or product,

found at the premises,

• (i) seize any relevant item and mark or otherwise identify it and remove it from the premises,

• (j) detain a vehicle, for such reasonable period necessary for the purposes of permitting an inspection or a search under this section either at the premises or at such other location to which the authorised officer requires it to be moved,

• (k) at the premises inspect and take copies of any records (including records stored in non-legible form), or extracts therefrom and retain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,

• (l) require any person at the premises, to produce to the authorised officer such books, documents or other records (and in the case of documents or records stored in non-legible form, a legible reproduction thereof) that are in that person’s possession or procurement, or under that person’s control, as he or she may reasonably require for the purposes of his or her functions under this Act,

• (m) require any person by or on whose behalf data equipment is or has been used in connection with a relevant activity, or any person having charge of, or otherwise concerned with the operation of, such data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in respect of its use, and

• (n) examine with regard to any matter under this Act any person whom the authorised officer has reasonable grounds for believing to be—

• (i) a holder of an authorisation,

• (ii) employed at the premises concerned by a holder of an authorisation,

• (iii) an applicant, or

• (iv) involved in carrying out a relevant activity,

and require the person to answer such questions as the authorised officer may ask relative to those matters and to make a declaration of the truth of the answers to those questions.

• (2) When carrying out a function under subsection (1), an authorised officer may—

• (a) take such photographic or video evidence at the premises as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,

• (b) require a person who apparently has control of, or access to, records, to provide the records,

• (c) summon, at any reasonable time, a person—

• (i) to give to the authorised officer such information as the authorised officer may reasonably require,

• (ii) to provide to the authorised officer any records which the person has control of, or access to, and which the authorised officer may reasonably require, or

• (iii) to provide an explanation of a decision, course of action, system or practice or the nature or content of any records provided under this section,

• (d) inspect records provided under paragraph (c) or found in the course of searching and inspecting premises,

• (e) take copies of or extracts from records so provided or found,

• (f) subject to subsection (4), take and retain records so provided or found for the period reasonably required for further examination,

• (g) secure, for later inspection, any records so provided or found and any data equipment, including any computer, in which those records may be held,

• (h) require a person at the premises to provide an explanation of a decision, course of action, system or practice or the nature or content of any records,

• (i) require a person at the premises to provide a report on any matter about which the authorised officer reasonably believes the person has relevant information,

• (j) if a person at the premises who is required to provide a particular record is unable to provide it, require the person to state, to the best of that person’s knowledge and belief, where the record is located or from whom it may be obtained, or

• (k) require that any information given to an authorised officer under this Part be certified as accurate and complete by such person or persons and in such manner as the authorised officer may require.

• (3) Where records are not in legible form, an authorised officer, in the exercise of any of his or her powers under this Part, may—

• (a) operate any data equipment, including any computer, or cause any such data equipment or computer to be operated by a person accompanying the authorised officer, and

• (b) require any person who appears to the authorised officer to be in a position to facilitate access to the records stored in any data equipment or computer or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including—

• (i) providing the records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible,

• (ii) giving to the authorised officer any password necessary to make the records concerned legible and comprehensible, or

• (iii) otherwise enabling the authorised officer to examine the records in a form in which they are legible and comprehensible.

• (4) Where an authorised officer proposes to retain any records taken by the authorised officer pursuant to this section for a period longer than 14 days after the date on which the records are taken, the authorised officer shall, before the end of that period of 14 days, or such longer period as the person concerned may agree, furnish, on request, a copy of the records to the person who it appears to the authorised officer, but for the exercise of the powers under this section, is entitled to possession of it.

• (5) A person at the premises shall give to an authorised officer such assistance as the authorised officer may reasonably require and make available to the authorised officer such reasonable facilities as are necessary for the authorised officer to exercise his or her powers under this Part including such facilities for inspecting and taking copies of any records as the authorised officer reasonably requires.

• (6) When performing a function under this Act an authorised officer may, subject to any warrant under section 59, be accompanied by such number of other authorised officers, officers of customs (within the meaning of the Customs Act 2015), members of the Garda Síochána as he or she considers appropriate.

• (7) An authorised officer shall not enter a dwelling, otherwise than—

• (a) with the consent of the occupier, or

• (b) pursuant to a warrant under section 59.

• (8) Where an authorised officer believes, upon reasonable grounds, that a person has committed an offence under this Act, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides and documentary confirmation thereof.

• (9) A statement or admission made by a person pursuant to a requirement under paragraph (c)(i), (d) or (n) of subsection (1), paragraph (c)(i), (h), (i), (j) or (k) of subsection (2) or subsection (3)(b) shall not be admissible as evidence in proceedings brought against that person for an offence (other than an offence under section 69 or 70).

• (10) In this section—

“person at the premises” may include the owner or person in charge of the premises or any person employed at the premises;

“person in charge” in relation to a premises means—

• (a) the person under whose direction and control any activities at that premises are being conducted, or

• (b) the person whom the authorised officer reasonably believes to be directing and controlling any activities taking place at that premises.

59. Warrant required to enter dwelling

59. Upon the sworn information of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that records relating to the carrying out of a relevant activity are held at a dwelling, issue a warrant authorising a named authorised officer, accompanied by such other authorised officers, officers of customs, or members of the Garda Síochána the judge considers necessary to—

• (a) enter the dwelling, (if necessary by the use of reasonable force),

• (b) inspect the dwelling, and

• (c) exercise all or any of the powers conferred on an authorised officer under this section, section 57 or subsection (1), (2) or (3) of section 58.

60. Report of authorised officer

60. Where an authorised officer performs functions under section 57 or 58 he or she shall prepare and provide a report in writing to the Minister in relation to it.

61. Compliance notice

61. (1) Where it appears to an authorised officer that it is necessary to do so in order to prevent or limit failure to comply with this Act, the authorised officer may give a notice (in this Part referred to as a “compliance notice”) to a person who the authorised officer suspects has contravened or is contravening a provision of this Act.

• (2) A compliance notice shall—

• (a) state, subject to subsection (9), the grounds for the authorised officer’s being satisfied that there has been or is a contravention referred to in subsection (1),

• (b) require the recipient to take such measures to cease the contravention as are specified in the notice,

• (c) state that the measures referred to in paragraph (b) are required to be taken by the specified date, and

• (d) advise the recipient of his or her right, under section 62, to appeal against or apply to suspend the operation of the compliance notice.

• (3) A compliance notice—

• (a) may be given whether or not there has been a prosecution for an offence under this Act in relation to the relevant activity concerned, and

• (b) shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the matter the subject of the compliance notice.

• (4) At any time where he or she considers it appropriate or necessary having regard to his or her functions under this Act, an authorised officer may give a compliance notice amending a compliance notice (including a compliance notice amended under this subsection).

• (5) A compliance notice shall remain in force—

• (a) unless it is discharged on appeal or varied,

• (b) until the authorised officer revokes it, or

• (c) until the authorised officer gives notice to the recipient stating that the compliance notice has been complied with.

• (6) A person who fails to comply with a compliance notice by the specified date shall be guilty of an offence.

• (7) A person who continues to fail to comply with a compliance notice after the specified date shall be guilty of an offence.

• (8) Where a person does not comply with a compliance notice by the specified date the authorised officer may take any measures he or she considers necessary to mitigate or remedy any risks to security or public order arising from the matter the subject of the compliance notice and the authorised officer may recover the cost of such measures from the person to whom the compliance notice is given as a simple contract debt in a court of competent jurisdiction.

• (9) Where the authorised officer believes that providing grounds under subsection (2)(a) would create a risk to the security or public order of the State, he or she—

• (a) may decide not to provide those grounds to the recipient of the compliance notice, and

• (b) shall include in the compliance notice a statement to the effect that he or she is declining to give grounds under this subsection.

• (10) In considering whether or not providing grounds under subsection (2)(a) would create a risk to the security or public order of the State, the authorised officer shall—

• (a) for a dual-use item, take account of all relevant considerations, including the matters set out in paragraphs (a) to (d) of Article 15, and

• (b) for a military item, take account of the criteria set out in Article 2 of Council Common Position 2008/944/CFSP.

62. Appeal against or application to suspend compliance notice

62. (1) A person to whom a compliance notice is given may, not later than 28 days from the date on which the compliance notice is given to him or her, appeal against the compliance notice to the District Court and, in determining the appeal the District Court may, if it is satisfied that there are reasonable grounds for so doing in the interests of justice and having regard to the need to mitigate or remedy any risks to security or public order arising from the matter the subject of the compliance notice—

• (a) confirm the compliance notice, with or without modification, or

• (b) discharge the compliance notice.

• (2) Where a compliance notice is confirmed under subsection (1), the District Court may, on the application of the appellant, suspend the operation of the compliance notice for such period as, in the circumstances of the case, the judge considers appropriate.

• (3) A person who appeals, under subsection (1), against a compliance notice or who applies to have the operation of the compliance notice suspended, shall at the same time as bringing the appeal or making the application, give notice to the authorised officer of the appeal or application and the authorised officer shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

63. Application to Circuit Court

63. (1) An authorised officer may apply to the Circuit Court for an order requiring the person to whom a compliance notice has been given to comply with the notice where the authorised officer is of the opinion that the person has failed to comply with the notice.

• (2) An application under subsection (1) shall be made on not less than 10 days’ notice to the person to whom the compliance notice was given.

• (3) Upon the hearing of an application under subsection (1), the Circuit Court may—

• (a) make the order sought,

• (b) make the order sought subject to such variations to those measures as may be specified in the order, or make the order sought subject to such other measures for the like purpose as may be specified in the order, or

• (c) dismiss the application.

64. Forfeiture

64. (1) Any relevant item in respect of which an offence has been committed under this Act or any items which are packed with or used in concealing such relevant items, are liable to forfeiture and, where any such relevant items or items are found in, on, or in any manner attached to, any vehicle, such vehicle is deemed to have been made use of in the transport of such relevant items or items and shall also be liable to forfeiture.

• (2) Where any relevant items, items or vehicles are liable to forfeiture under subsection (1), anything containing or that contained such relevant items, items or vehicles and anything made use of in the transport of such relevant items, items or vehicles, is liable to forfeiture.

• (3) Subject to subsection (4), an authorised officer shall give notice of the seizure of anything as liable to forfeiture and of the grounds for seizure to any person who to the officer’s knowledge was at the time of the seizure the owner or one of the owners of the thing seized.

• (4) Notice under subsection (3) need not be given under this section to a person if the seizure was made in the presence of the person whose offence or suspected offence occasioned the seizure or, in the case of anything seized in any vessel or aircraft, in the presence of the master or pilot-in-command of such vessel or aircraft.

• (5) Notice under subsection (3) shall, if the person concerned has no known address in the State, be deemed to have been duly given to the person by publication of notice of the seizure concerned in Iris Oifigiúil.

• (6) Where relevant items or other items referred to in subsection (1) or vehicles have been seized under this section as liable to forfeiture, a person (in this section referred to as the “claimant”) may—

• (a) not later than 30 days from the date of the notice of seizure under this section, or

• (b) where no such notice has been given, not later than 30 days from the date of the seizure,

give notice to the Minister of a claim (in this section referred to as a “notice of claim”) that the goods seized are not so liable.

• (7) A notice of claim shall specify the full name and address of the claimant and the basis on which the claim is grounded and, where that address is outside the State, any documents relating to condemnation proceedings may be served at that address by post.

• (8) If, on the expiration of a period referred to in subsection (6), no notice of claim has been given, the thing seized shall be deemed to have been duly condemned as forfeited, and the forfeiture shall apply from the date when the liability to forfeiture arose.

• (9) Where a notice of claim has been given, the Minister shall, subject to subsections (1) and (2) of section 66, bring condemnation proceedings for the condemnation of the thing concerned.

65. Proceedings for condemnation by court

65. (1) Proceedings for condemnation by the court (in this section referred to as “condemnation proceedings”) are civil proceedings, and such proceedings shall be commenced in the name of the Minister.

• (2) Where in any condemnation proceedings the court finds that the thing seized was, at the time of seizure, liable to forfeiture, the court shall condemn it as forfeited, and in any other case the court shall order its release.

• (3) Condemnation proceedings may be instituted in the High Court or, if in the opinion of the Minister the value of the thing seized (that is to be the subject of such proceedings) does not exceed—

• (a) €75,000, the Circuit Court, or

• (b) €15,000, the District Court.

• (4) In any condemnation proceedings, the claimant or any solicitor acting on behalf of such claimant, shall state on oath that the thing seized was, or was to the best of his or her knowledge and belief, the property of the claimant at the time of the seizure.

• (5) The Minister may, in his or her discretion, stay or compound any condemnation proceedings.

• (6) The Minister may restore anything seized which is the subject of condemnation proceedings.

• (7) Where in any condemnation proceedings—

• (a) judgment is given for the claimant and the court or judge certifies that there was probable cause for making such seizure or detention, no authorised officer or other person who made or assisted in making the seizure is liable to any civil or criminal proceedings on account of the seizure or detention of the thing seized, and

• (b) anything is condemned as forfeited, the forfeiture shall apply from the date when the liability to forfeiture arose.

66. Power to deal with seizures, before and after condemnation

66. (1) The Minister may, in his or her discretion, restore anything seized as liable to forfeiture under this Act.

• (2) Without prejudice to subsection (1), the Minister may as he or she thinks fit, and notwithstanding that the thing seized has not yet been condemned, or deemed to have been condemned, as forfeited—

• (a) if a notice of claim in relation to such thing has been duly given under section 64, deliver it up to the claimant on payment to the Minister of such sum as the Minister deems proper, being a sum not exceeding that which represents the value of the thing, including any tax or duty on it that has not been paid, or

• (b) if the thing seized is, in the opinion of the Minister, of a perishable or hazardous nature, sell or destroy it.

• (3) If, where anything is delivered up, sold or destroyed under subsection (2), it is held by the court in condemnation proceedings that such thing was not liable to forfeiture at the time of its seizure, the Minister shall, subject to any deduction allowed under subsection (4), on demand tender to such claimant—

• (a) where a sum has been paid by such claimant under subsection (2)(a), an amount equal to that sum,

• (b) if the thing has been sold under subsection (2)(b), an amount equal to the proceeds of sale, or

• (c) if the thing has been destroyed under subsection (2)(b), an amount equal to the market value of the thing at the time of its seizure.

• (4) Where the amount to be tendered under subsection (3) includes any sum on account of any duty or tax chargeable on the thing which has not been paid before its seizure, the Minister may deduct from the amount so much of it as represents the duty or tax.

• (5) If the claimant accepts any amount tendered under subsection (3), such claimant shall not be entitled to maintain proceedings in any court on account of the seizure, detention, sale or destruction of the thing concerned.

• (6) All things seized by an authorised officer as liable to forfeiture shall after condemnation of such things be either sold or destroyed or otherwise disposed of in such manner as the Minister may direct.

67. Legal privilege

67. (1) Subject to subsection (2), nothing in this Act shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material.

• (2) The disclosure of information may be compelled, or possession of it taken, pursuant to this Act, notwithstanding that it is apprehended that the information is privileged legal material provided that the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the High Court of the issue as to whether the information is privileged legal material.

• (3) Without prejudice to subsection (4), where, in the circumstances referred to in subsection (2), the disclosure of information has been compelled or possession taken of it pursuant to this Act, the person—

• (a) to whom such information has been so disclosed, or

• (b) who has taken possession of it,

shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (4) in relation to the matter concerned) apply to the High Court for a determination as to whether the information is privileged legal material and an application under this section shall be made not later than 30 days from the date of the disclosure or the taking of possession.

• (4) A person who, in the circumstances referred to in subsection (2), is compelled to disclose information, or from whose possession information is taken, pursuant to this Act, may apply to the High Court for a determination as to whether the information is privileged legal material.

• (5) Pending the making of a final determination of an application under subsection (3) or (4), the High Court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to—

• (a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court,

• (b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of—

• (i) examining the information, and

• (ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material.

• (6) In this section—

“computer” includes a personal organiser or any other electronic means of information storage or retrieval;

“information” means information contained in a book, document or record, a computer or otherwise;

“privileged legal material” means information which, in the opinion of the High Court, a person is entitled to refuse to produce on the grounds of legal professional privilege.

68. Application of provisions relating to security and hearings otherwise than in public

68. Each of sections 52 and 53 shall apply to an appeal under section 62, an application under section 63 or condemnation proceedings, subject to the following and any other necessary modifications:

• (a) the reference in each of sections 52 and 53 to High Court shall be construed—

• (i) in the case of section 62, as a reference to the District Court,

• (ii) in the case of section 63, as a reference to the Circuit Court, and

• (iii) in the case of condemnation proceedings, as a reference to the High Court, Circuit Court or District Court where the proceedings are instituted in accordance with section 62;

• (b) the reference in section 52 to relevant material shall be construed as including a reference to any decision, evidence, document, material or other matter that is relevant to an appeal under section 62, an application under section 63 or condemnation proceedings.

PART 7 Offences and Penalties

69. Obstruction

69. A person shall be guilty of an offence if he or she—

• (a) obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on the officer or member concerned by this Act or a warrant under section 59 or impedes the exercise by the authorised officer or member, as the case may be, of such power,

• (b) fails or refuses to comply with a requirement of an authorised officer under a requirement under paragraph (c), (d), (l), (m) or (n) of section 58(1), paragraph (b), (c) or (i) of section 58(2), or section 58(3)(b), or in purported compliance with such requirement gives information or makes a declaration to the authorised officer or member that he or she knows to be false or misleading in any material respect, or

• (c) fails or refuses to comply with a direction of an authorised officer under section 58(1)(f).

70. False or misleading information

70. A person who provides information to the Minister in purported compliance with this Act that he or she knows to be false or misleading in a material particular or is reckless as to whether it is false or misleading in a material particular shall be guilty of an offence.

71. Penalties for offences

71. (1) A person guilty of an offence under section 31(7), 32(6), 33(2), 52(6), 61(6), 69 or 70 shall be liable—

• (a) on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both, or

• (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 3 years or both.

• (2) A person guilty of an offence under section 44(5) shall be liable—

• (a) on summary conviction to a class C fine or imprisonment for a term not exceeding 6 months or both, or

• (b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 3 years or both.

• (3) A person guilty of an offence under—

• (a) subsection (1), (2), (3)(b), (4)(b), (5), (6)(b) or (7)(b) of section 10,

• (b) section 11,

• (c) section 12,

• (d) section 13,

• (e) subsection (1), (2)(b), (3) or (4)(b) of section 14,

• (f) section 15,

• (g) subsection (1), (2)(b), (3) or (4)(b) of section 16,

• (h) section 17(3),

• (i) section 18,

• (j) section 19,

• (k) subsection (1) or (2)(b) of section 20,

• (l) section 24,

• (m) section 25,

• (n) section 26,

• (o) section 30,

• (p) section 46,

• (q) section 48, or

• (r) section 61(7),

shall be liable—

• (i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or

• (ii) on conviction on indictment, to a fine not exceeding the greater of €10,000,000 or 3 times the value of the relevant items in respect of which the offence is committed or imprisonment for a term not exceeding 5 years or both.

72. Offence by body corporate

72. (1) Where an offence under this Act is committed by a body corporate and it is proved that the offence was committed with the consent, connivance or approval of, or was attributable to any wilful neglect on the part of any director, manager, secretary or other officer of the body corporate, 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.

• (2) Where the affairs of a body corporate are managed by its members, subsection (1) 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, manager, secretary or other officer of the body corporate.

PART 8 Miscellaneous and Transitional Provisions

73. Information sharing

73. (1) The Minister may share information with a relevant body and enter into a data sharing arrangement with that relevant body where it is necessary and proportionate for the purpose of the performance of a function of the Minister under Part 4, 5 or 6.

• (2) The information referred to in subsection (1) may—

• (a) include the name, address and contact details of a relevant person,

• (b) identify an item as a relevant item,

• (c) identify the relevant activity engaged in or proposed to be engaged in by a relevant person,

• (d) be information required for the purpose of consideration under section 29(3),

• (e) be commercial information relating to that relevant activity including the destination or end-use of the relevant item, or

• (f) include such other information as may be prescribed by the Minister for the purposes of subsection (1).

• (3) The Minister may prescribe—

• (a) the relevant bodies with whom the information may be shared, and

• (b) such conditions as the Minister considers appropriate to impose on the sharing of the information including, subject to the General Data Protection Regulation, sharing of any personal data.

• (4) In this section, “relevant body” means—

• (a) the Minister for Foreign Affairs,

• (b) the Minister for Justice,

• (c) the Minister for Defence,

• (d) any other Minister of the Government who the Minister is satisfied, performs functions which are relevant to the purpose referred to in subsection (1),

• (e) the Garda Síochána,

• (f) the Defence Forces, and

• (g) the Revenue Commissioners.

74. Transitional provisions

74. (1) Where, immediately before the coming into operation of section 8, an application for a licence was made in accordance with the Regulations of 2021 or an application for an authorisation was made in accordance with the Order of 2009 and—

• (a) a decision has not been made by the Minister in relation to the application before that coming into operation, the application shall be taken to be an application under this Act, or

• (b) a decision has been made to grant the licence or authorisation but notice of the decision has not been given to the applicant, the decision shall be taken to be a decision in accordance with this Act and the licence or authorisation shall be taken to be granted, subject to any conditions referred to in the decision, under this Act.

• (2) Where a relevant activity, in relation to which a licence has been granted under the Regulations of 2021 or an authorisation has been granted under the Order of 2009 before the coming into operation of section 8 is not carried out, or in relation to a global authorisation granted under the Order of 2009, is not fully carried out before that coming into operation, the licence or authorisation shall on the giving of notice in that behalf to the Minister by the person to whom the licence or authorisation was granted, in such form or manner as may be directed by the Minister, be taken to be an authorisation granted subject to the same, if any, conditions under this Act, without the requirement to apply for an authorisation under Part 5.

• (3) Where an appeal is made to the Minister under and in accordance with the Regulations of 2018 before the coming into operation of section 8 and the appeal has not been determined under Regulation 7 of those Regulations—

• (a) the appeal shall be taken to be an appeal under section 43, and

• (b) Regulations 5 and 6 of the Regulations of 2018 shall continue to apply to the decision the subject of the appeal until the determination of the appeal under Part 5.

Footnotes