S.I. No. 170/1998:

DISTRICT COURT (BANKERS' BOOKS EVIDENCE) RULES, 1998.

DISTRICT COURT (BANKERS' BOOKS EVIDENCE) RULES, 1998.

The District Court Rules Committee, in exercise of the powers conferred on them by section 91 of the Courts of Justice Act, 1924 , section 72 of the Courts of Justice Act, 1936 , section 17 of the Interpretation Act, 1937 [as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ] and section 34 of the Courts (Supplemental Provisions) Act, 1961 , do hereby, with the concurrence of the Minister for Justice, Equality and Law Reform, make the following Rules of Court:--

1. These Rules may be cited as the District Court (Bankers' Books Evidence) Rules, 1998.

2. These Rules shall come into operation on the 9th day of June, 1998, and shall be read together with all other District Court Rules for the time being in force.

3. Order 38 of the District Court Rules, 1997 ( S.I. No. 93 of 1997 ) is hereby amended by the addition of the following Rules after Rule 2 (3):--

" Section 7A application venue

(4) An application to the District Court by a member of the Garda Siochana not below the rank of Superintendent under the provisions of section 7A of the Bankers' Books Evidence Act, 1879 (42 & 43 Vict. CH. 11) as inserted by section 131 of the Central Bank Act, 1989 , and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 , may be made at any sitting of the Court for the Court district wherein the offence in question is alleged to have been committed, and may be heard otherwise than in public.

-- notice of

(5) Such application shall be preceded by the issue of a notice in the Form 38.10, Schedule B, which shall be lodged with the Clerk prior to the making of the application.

-- Order

(6) The order of the Court granting the application shall be in the Form 38.11, Schedule B, which shall, unless the Court otherwise directs, be served upon the relevant bank three clear days before the order is to be obeyed. Service may be effected by delivering a copy of the order to the office of the bank wherein the relevant records are kept."

and the said Order 38, as so amended, appears in Schedule 1 hereto.

4. The Forms numbered 38.10 and 38.11 hereafter, shall be added to the Forms in Schedule B to the District Court Rules, 1997 ( S.I. No. 93 of 1997 ).

Schedule B

O. 38, r.2 (3)

THE DISTRICT COURT

*District No.

*District Court Area of

*Dublin Metropolitan District

No. 38.10

BANKERS' BOOKS EVIDENCE ACT, 1979

section 7A

NOTICE OF APPLICATION FOR AN ORDER TO INSPECT AND TAKE COPIES OF ENTRIES IN BOOKS

............................................................ ............................................................ ......................................... Applicant

of ............................................................ ............................................................ ...........................................................

TAKE NOTICE that application will be made to the District Court at ............................. on the ....... day of ................... 19 ......, at .... a.m./pm., by the Applicant above-named, a member of the Garda Síochána not below the rank of Superintendent, for an order under the provisions of section 7A of the Bankers' Books Evidence Act, 1879, as inserted by section 131 of the Central Bank Act, 1989 and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 , that the applicant or another member of the Garda Síochána designated by him/her be at liberty to inspect and take copies of any entries in the books of .............................. at ............................................... concerning account or accounts of ................................. of ......................... or inspect and take copies of any document associated with or relating to an entry in such books for the purposes of investigation of an indictable offence which has been committed within the said district.

Dated this ......... day of ................... 19 ........

............................................................ ..............

Applicant

To the District Court Clerk,

at ............................................................ .

*Delete inapplicable words.

Schedule B

O.38, r.2 (4)

THE DISTRICT COURT

*District No.

*District Court Area of

*Dublin Metropolitan District

No. 38.11

BANKERS' BOOKS EVIDENCE ACT, 1979

section 7A

ORDER TO INSPECT AND TAKE COPIES OF ENTRIES IN BOOKS

............................................................ ............................................................ ........................................ Applicant of............................................................ ............................................................ ...........................................................

UPON HEARING an application made to this Court on this date by the above-named applicant, a member of the Garda Síochána not below the rank of Superintendent, for an order under the provisions of section 7A of the Bankers' Books Evidence Act, 1879, as inserted by section 131 of the Central Bank Act, 1989 and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 ,

AND BEING SATISFIED that there are reasonable grounds for believing that an indictable offence has been committed in the said district and that there is material in the possession of ............................................................ .... at ............................................. which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence;

THE COURT HEREBY ORDERS pursuant to the said section 7A of the Bankers' Books Evidence Act, 1879, as inserted by section 131 of the Central Bank Act, 1989 and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 , that the applicant or another member of the Garda Síochána designated by him/her be at liberty to inspect and take copies of any entries in a banker's book or inspect and take copies of any document associated with or relating to an entry in such book for the purposes of investigation of an indictable offence which has been committed.

Dated this ......... day of .................. 19 ........

............................................................ ..............

Judge of the District Court

*Delete inapplicable words.

SCHEDULE 1

ORDER 38

MISCELLANEOUS MATTERS

Powers of Court in cases of variance, defects, omissions, no offence disclosed or no appearance

Variance between evidence and complaint

1. (1) Subject to the provisions of paragraph (3) hereof, in cases of summary jurisdiction no variance between the complaint and the evidence adduced in support thereof, as to the time at which the offence or cause of complaint is stated to have been committed or to have arisen, shall be deemed material, provided that such information or complaint was in fact made within the time limited by law for making the same; nor shall any variance between the complaint and the evidence adduced in support thereof, as to the place in which the offence or cause of complaint is stated to have been committed or to have arisen, be deemed material, provided that the said offence or cause of complaint was committed or arose within the jurisdiction of the Judge by whom the case is being heard, or that, the accused resides or in the case of an offence was arrested within such jurisdiction. In any such case the Court may amend the summons, warrant or other document by which the proceedings were originated and proceed to hear and determine the matter.

Defects

(2) Subject to the provisions of paragraph (3) hereof, no objection shall be taken or allowed on the ground of a defect in substance or in form or an omission in the summons, warrant or other document by which the proceedings were originated, or of any variance between any such document and the evidence adduced on the part of the prosecutor at the hearing of the case in summary proceedings or at the examination of the witnesses during the preliminary examination of an indictable offence, but the Court may amend any such summons, warrnt or other document, or proceed in the matter as though no such defect, omission or variance had existed.

Court's discretion

(3) Provided, however, that if in the opinion of the Court the variance, defect or omission is one which has misled or prejudiced the accused or which might affect the merits of the case, it may refuse to make any such amendment and may dismiss the complaint either without prejudice to its being again made, or on the merits the Court thinks fit; or if it makes such amendment, it may upon such terms as it thinks fit adjourn the proceedings to any future day at the same time or at any other place.

No offence disclosed or no appearance

(4) Where the Court is of opinion that the complaint before it discloses no offence at law, or if neither the prosecutor nor accused appears, it may if it thinks fit strike out the complaint with or without awarding costs.

Application for--venue

Order to inspect and copy entries in Banker's Books

2. (1) An application by a party to proceedings before the Court for an order under section 7 of the Bankers' Books Evidence Act, 1879 (42 & 43 Vict. CH. 11) authorising that party to inspect and take copies of entries in a banker's books for any of the purposes of such proceedings may be made at any sitting of the Court for the Court district wherein the proceedings have been brought.

--notice of

(2) Such application shall be preceded by the issue of a notice in the Form 38.1, Schedule B, which shall be lodged with the Clerk prior to the making of the application.

Order of the Court

(3) The order of the Court granting the application shall be in the Form 38.10, Schedule B, which shall, unless the Court otherwise directs, be served upon the relevant bank three clear days before the order is to be obeyed. Service may be effected by delivering a copy of the order to the office of the bank wherein the relevant records are kept.

Section 7A application--venue

(4) An application to the District Court by a member of the Garda Síochána not below the rank of Superintendent under the provisions of section 7A of the Bankers' Books Evidence Act, 1879 (42 & 43 Vict. CH. 11) as inserted by section 131 of the Central Bank Act, 1989 , and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 , may be made at any sitting of the Court for the Court district wherein the offence in question is alleged to have been committed and may be heard otherwise than in public.

--notice of

(5) Such application shall be preceded by the issue of a notice in the Form 38.10, Schedule B, which shall be lodged with the Clerk prior to the making of the application.

--Order

(6) The order of the Court granting the application shall be in the Form 38.11, Schedule B, which shall, unless the Court otherwise directs, be served upon the relevant bank three clear days before the order is to be obeyed. Service may be effected by delivering a copy of the order to the office of the bank wherein the relevant records are kept.

Notice to Coroner of result of proceedings

3. At the conclusion of criminal proceedings in the District Court in relation to the death of a person the Clerk shall, pursuant to section 25 (3) of the Coroners Act, 1962 (No. 9 of 1962), inform (in the Form 38.3, Schedule B) the coroner holding an inquest in relation to the death of the result of the proceedings.

PROCEDURE UNDER CRIMINAL JUSTICE ACT, 1994

4. In rules 5 to 8 inclusive following, "the Act" means the Criminal Justice Act, 1994 (No. 15 of 1994).

Authority to detain cash

5. An application to the Court for an order under the provisions of subsection (2) of section 38 of the Act authorising the detention of cash seized beyond forty-eight hours shall be made by sworn information of a member of the Garda Síochána or an officer of customs and excise in the Form 38.4, Schedule B. The order of the Court thereon shall be in the Form 38.5, Schedule B.

--further detention of cash

6. (1) An application to the Court under the provisions of subsection (3) of section 38 of the Act for an order authorising the further detention of cash seized shall be made by notice in the Form 38.6, Schedule B.

--notice of application

(2) Notice of the application shall be served on any person to be affected by the order at least seven days before the date of hearing. A copy of the notice of application together with a statutory declaration as to service thereof shall be lodged with the Clerk at least forty-eight hours before the date of hearing.

--order

(3) The order of the Court on the application shall be in the Form 38.7, Schedule B.

Release of cash

7. (1) An application to the Court under the provisions of subsection (5) of section 38 of the Act for an order directing the release of cash detained by virtue of the provisions of the said section shall be by notice in the Form 38.8, Schedule B.

--notice of application

(2) Notice of the application shall be served on the member of the Garda Síochána or officer of customs and excise on whose application the order for detention was made at least seven days before the date of hearing. A copy of the notice of application together with a statutory declaration as to service thereof shall be lodged with the Clerk at least forty-eight hours before the date of hearing.

--order

(3) The order of the Court on the application shall be in the Form 38.9, Schedule B.

Venue

8. Applications to the Court under the Act may be brought, heard and determined before a Judge of the District Court at any sitting of the Court within such Judge's District.

GIVEN this 30th day of January, 1998.

PETER SMITHWICK (Chairman),

JOHN GARAVAN,

JOHN P. CLIFFORD,

JOHN P. BROPHY,

SEAN McMULLIN,

GERARD GRIFFIN,

DEIRDRE M. KENNEDY,

JAMES McCORMACK.

I concur in the making of the foregoing Rules.

Dated this 26th day of May, 1998.

JOHN O'DONOGHUE,

Minister for Justice, Equality and Law Reform.

EXPLANATORY NOTE.

These Rules, which comes into effect on 9th June, 1998, reflect the provisions of section 7A of the Bankers' Books Evidence Act, 1879 as inserted by section 131 of the Central Bank Act, 1989 , and as amended by section 14 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996 .