PART VIII

Enforcement, Offences and Penalties

64. —(1) The Governor of the Bank or the Minister for Enterprise and Employment or any other person appointed by any of them 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 the Minister for Enterprise and Employment or such other person appointed by the Governor of the Bank or the Minister for Enterprise and Employment for that purpose and a form of personal identification.

65. —(1) The powers conferred by this section may be exercised in respect of an approved professional body or a body which has applied to be an approved professional body, a proposed investment business firm, an authorised investment business firm, an investment business firm or a former authorised investment business firm, or a person whom a supervisory authority has reasonable grounds to believe has provided or is providing investment business services or investment advice, or an associated undertaking or related undertaking and these 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 a supervisory authority may require to enable it to exercise any of its functions under this Act, do any one or more of the following things:

(a) at all reasonable times enter any premises, at which there are reasonable grounds to believe that any investment business service or any activity in connection with an investment business firm or an approved professional body is, or has been, carried on, or that books, records or other documents in relation to such business or activities are kept, and search and inspect the premises and any books, records or other documents on the premises;

(b) secure for later inspection any premises or any part of a premises in which books, records or other documents are kept or there are reasonable grounds for believing that such books, records or other documents are kept;

(c) inspect and take copies of or extracts from, or, subject to a warrant being issued for that purpose by a judge of the District Court, remove for a reasonable period for further examination, any books, records or other documents which the officer finds in the course of inspection;

(d) require any person who carries on such investment business services or investment advice and any person employed in connection therewith to give to the authorised officer such information as the officer may reasonably require in relation to any entries in such books, records or other documents;

(e) require any such person to give to the officer any information which the authorised officer may require in regard to the investment business service or investment advice or in regard to the persons carrying on such investment business service or investment advice or employed in connection therewith;

(f) require any such person to give to the authorised officer any other information which the authorised officer may reasonably require in regard to such investment business service or investment advice;

(g) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the authorised officer reasonable assistance in relation thereto;

(h) summon, at any reasonable time, any other person employed in connection with the investment business service or investment advice to give to the authorised officer any information which the officer may reasonably require in regard to such activity and to produce to the authorised officer any books, records or other documents which are in that person's power or control;

(i) 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 investment business firm, an approved professional body and any person carrying on the business of an associated or related undertaking to which this section relates shall each furnish to a supervisory authority—

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

(b) within such period as the supervisory authority may specify, any information and returns (not being information or returns specified under paragraph (a) of this subsection) concerning the business to which the authorisation or business of the associated undertaking or related undertaking relates that the supervisory authority may request in writing (being information and returns which the supervisory authority 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 supervisory authority are, in the opinion of the supervisory authority, materially relevant to the proper appraisal of the business of the investment business firm to which the associated or related undertaking relates.

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

(9) The duty to produce or provide any information, document, material or explanation extends to an examiner, liquidator, receiver, official assignee 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 supervisory authority or the authorised officer to have the information, document, material or explanation in his possession or under his control.

(10) An authorised officer appointed under section 64 of this Act, where he considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer by this Act.

(11) A person shall not obstruct or interfere with an authorised officer in the exercise of his powers under this Act.

(12) A person shall comply with any request or requirement of an authorised officer under this Act.

(13) 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.

(14) If any officer, employee, shareholder or agent of a person to whom this section applies refuses to produce to an authorised officer when 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, then the authorised officer may certify the refusal under his hand to the Court and the Court may thereupon enquire 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.

66. —(1) Without prejudice to the powers of a supervisory authority under this Act, where the supervisory authority is of the opinion that it is in the interest of the proper and orderly regulation and supervision of investment business firms or the protection of investors that an investigation should be held into the affairs of an investment business firm, the supervisory authority may apply to the Court and the Court, as it thinks proper, may appoint one or more inspectors to investigate the affairs of that investment business 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 supervisory authority may, if it is of the opinion that it would not be prejudicial to the interests of shareholders or creditors or investors, notify the investment business 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 investment business firm shall, within such period as the supervisory authority may set out in the notification, be entitled to give to the supervisory authority a statement in writing explaining its activities.

67. —Where an inspector appointed under section 66 of this Act to investigate the affairs of an investment business 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 investment business 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 investment business firm, he shall, with the approval of the Court, have power to do so, and shall report on the affairs of the other investment business 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 investment business firm.

68. —Where the Court appoints an inspector under section 66 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.

69. —(1) It shall be the duty—

(a) of all officers, shareholders, employees and agents of an investment business firm or other body the affairs of which are being investigated under section 66 or 73 of this Act, including officers, shareholders and agents outside the State, and

(b) of any other person, including those being investigated under section 67 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 investment business firm,

to produce to an inspector appointed under section 66 or 73 of this Act all books, accounts, deeds, records or other documents of, or relating to, the business of the investment business firm or person being investigated under section 67 of this Act, which are in their control, possession or procurement, to attend before the inspector, when required to do so, and, otherwise, 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 investment business firm being investigated or other person being investigated by the inspector 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) take or cause to be taken the answers of such person in 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 investment business firm or of any 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 investment business 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 investment business firm or its shareholders or any client or creditor of the investment business firm,

the inspector may require the director or past director or officer or past officer 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 investment business 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 investment business 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 investment business firm or associated or related undertaking or other person mentioned in subsection (1) of this section and any statement which may be offered in defence make any order or issue a direction as it thinks fit, including a direction to the person concerned to attend or re-attend before the inspector, or may make an order to produce particular books or documents or answer a particular question put to him by the inspector, or may issue 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 investment business 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 investment business firm or other person mentioned in subsection (1) of this section, whether those persons are or are not officers of the investment business firm or other body or undertaking.

70. —(1) The expenses of and incidental to an investigation and the fees incurred by an inspector appointed by the Court under section 66 of this Act or by a supervisory authority under section 73 of this Act shall be defrayed by the relevant supervisory authority, but the Court may direct that any person dealt with in the report shall be liable, to such extent as the Court may direct, on the application of the supervisory authority, to repay the supervisory authority 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 supervisory authority 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.

71. —(1) An inspector appointed under section 66 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 and the relevant supervisory authority,

(b) if it thinks fit, furnish a copy thereof to the investment business firm concerned and its auditors or, if the report concerned the affairs of a certified person, furnish a copy thereof to an approved professional body, 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 investment business firm concerned or a shareholder of any other body dealt with in the report by virtue of section 66 of this Act or whose interests as a creditor or client of the investment business 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.

72. —(1) Having considered a report made under section 71 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 or dissolution or bankruptcy of an investment business 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 investment business 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 investment business firm liable to be wound up or dissolved under this Act or subject to an adjudication of bankruptcy, it appears to the supervisory authority from—

(a) any report made under section 71 as a result of an application by the supervisory authority under section 66 , or

(b) any report made by inspectors appointed by the supervisory authority under section 73 of this Act, or

(c) any information or document obtained by the supervisory authority under this Act,

that a petition should be presented for the winding-up or dissolution or bankruptcy of an investment business firm, the supervisory authority may, unless an investment business firm is already being wound up or dissolved or subject to an adjudication of bankruptcy, present a petition for it to be so wound up or dissolved or to be the subject of an adjudication of bankruptcy if the Court thinks it just and equitable for it to be so wound up or dissolved or subject to an adjudication of bankruptcy.

73. —(1) Without prejudice to its powers under this Act, a supervisory authority 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 authorised investment business firm or other undertaking which is, or was at the relevant time, an associated or related undertaking of an authorised investment business firm, or any particular aspect of such business,

(b) compliance of the authorised investment business firm with all or any of the following:

(i) conditions or requirements or both imposed by the supervisory authority under this Act,

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

(iii) any condition or requirement of this Act,

(iv) rules or requirements set out or approved by the supervisory authority, with respect to clients' money and investment instruments,

(v) any other enactment,

and

(c) any other matter as the supervisory authority may consider appropriate.

(2) An appointment under subsection (1) of this section may be made by the supervisory authority 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 investment business firms, or

(b) for the effective discharge by the supervisory authority of its statutory functions under this Act.

(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 67 to 71 , except sections 68 , 69 (3) and 70 (3), shall apply with the necessary modifications or references to the affairs of the authorised investment business 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 authorised investment business 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 67 , 69 (4), 70 (1) and 70 (2) of this Act, there shall be substituted references to the supervisory authority.

74. —(1) Without prejudice to any other powers of a supervisory authority under this Act, where it appears on the basis of information provided by an authorised officer or an inspector appointed under section 73 of this Act, that there has been a breach by an investment business firm or professional body of a condition or requirement imposed by the supervisory authority under any or all of the sections to which this section applies the supervisory authority 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 investment business firm or professional body.

(2) This section applies to the following sections, namely, sections 10 (2), 10 (6), 10 (7), 10 (8), 10 (12)(b), 10 (13), 10 (15), 13 (2)(a), 13 (5), 14 (1), 14 (4), 15 (1), 18 (1), 18 (4), 18 (7), 23 (2), 23 (3), 32 (1), 33 (2), 37 (1), 42 (1), 52 (1), 56 (2), 57 (2)(a), 57 (3) and 58 (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 supervisory authority 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 investment business firm or professional body 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 investment business firm or professional body,

(b) direct that the investment business firm or professional body concerned shall pay to the supervisory authority 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 supervisory authority 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 supervisory authority 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 investment business firm or professional body,

(b) direct that an investment business firm or professional body shall pay the supervisory authority a specified sum, not to exceed £500,000, in respect of any breach of a condition or requirement,

(c) arrange for the publication of 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 investment business firm or professional body may appeal to the Court against a determination of the Committee issued under subsection (7) of this section and the Court may vary or annul the determination of the Committee.

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

75. —(1) If a Judge of the District Court is satisfied on the sworn information of an authorised officer or an inspector appointed under section 73 of this Act that there are reasonable grounds for suspecting that there are on any premises any books, records or other 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 subsection (1)(a) of section 78 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 the exercise of an authority conferred by a warrant under this section to take possession of any books or documents,

shall be guilty of an offence.

(4) In this section “premises” includes any building or other land and includes a vessel, aircraft or motor vehicle.

76. —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.

77. —(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.

78. —(1) No information, book or document relating to a person which has been obtained under section 75 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 relevant supervisory authority 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 supervisory authority,

(c) with a view to the institution by the supervisory authority of proceedings for the winding-up, dissolution or bankruptcy under this Act of the person or otherwise for the purposes of proceedings instituted by the supervisory authority for that purpose,

(d) for the purposes of proceedings under section 75 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) a supervisory authority,

(b) a person authorised by the Governor of the Bank or the Minister for Enterprise and Employment,

(c) a committee appointed under section 74 of this Act,

(d) an inspector appointed under this Act,

(e) the Minister,

(f) any court of competent jurisdiction,

(g) the Bank or the Minister for Enterprise and Employment or any other competent authority for the purposes of Council Directives 93/22/EEC of 10 May 1993(1) ) and 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) .

79. —(1) A person who is guilty of an offence under section 9 , 10 (16), 16 (9), 19 (1)(b), 23 (1), 23 (15), 28 (3), 30 , 34 (1), 34 (3), 35 (4), 36 (6), 46 (2), 52 (3), 52 (5), 52 (6), 52 (9), 54 (6), 56 (9), 75 (3), 78 (2), 79 (4), 79 (7), 79 (8) of, or paragraph 15 of the Second Schedule to, this Act, 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 by a supervisory authority.

(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 investment business firm or body corporate or by an unincorporated body or person or by a sole trader 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 investment business firm or person purporting to act on behalf of the investment business firm or body corporate or partnership, or sole trader, that officer or employee or person 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 a supervisory authority, 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 supervisory authority in relation to an authorisation of an investment business firm or with a direction issued by the supervisory authority under section 21 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 supervisory authority concerned.

(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 subsections (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 authorised investment business 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 authorised investment business 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 disposal of, altering or making of an 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 or sole traders it shall be a defence for a partner or sole trader 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.

⁽¹⁾ O.J. No. L.141 11/6/93.

⁽²⁾ O.J. No. L.322 17/12/77.

⁽³⁾ O.J. No. L.386 30/12/89.