Committee Reports::Interim report - Glackin report::01 October, 1993::Appendix

19.—(1) The Minister may, subject to subsection (2), give directions to any body being—

(a) a company formed and registered under the Companies Acts;

(b) an existing company within the meaning of those Acts;

(c) a company to which the Principal Act applies by virtue of section 325 thereof or which is registered under that Act by virtue of Part IX thereof;

(d) a body corporate incorporated in, and having a principal place of business in, the State, being a body to which any of the provisions of the said Act with respect to prospectuses and allotments apply by virtue of section 377 of that Act;

(e) a body corporate incorporated outside the State which is carrying on business in the State or has at any time carried on business therein;

(f) any other body, whether incorporated or not, which is, or appears to the Minister to be, an insurance undertaking to which the Insurance Acts, 1909 to 1990, or regulations on insurance made under the European Communities Act, 1972, would apply,

requiring the body, at such time and place as may be specified in the directions, to produce such books or documents as may be so specified, or may at any time, if he thinks there is good reason so to do, authorise any officer of his, on producing (if required so to do) evidence of his authority, to require any such body as aforesaid to produce to him forthwith any books or documents which the officer may specify.

(2) Directions may be given by the Minister if he is of the opinion that there are circumstances suggesting that—

(a) it is necessary to examine the books and documents of the body with a view to determining whether an inspector should be appointed to conduct an investigation of the body under the Companies Acts; or

(b) that the affairs of the body are being or have been conducted with intent to defraud—

(i)its creditors,

(ii)the creditors of any other person, or

(iii)its members; or

(c) that the affairs of the body are being or have been conducted for a fraudulent purpose other than described in paragraph (b); or

(d) that the affairs of the body are being or have been conducted in a manner which is unfairly prejudicial to some part of its members; or

(e) that any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body are or would be unfairly prejudicial to some part of its members; or

(f) that any actual or proposed act or omission or series of acts or omissions of the body or on behalf of the body are or are likely to be unlawful; or

(g) that the body was formed for any fraudulent purpose; or

(h) that the body was formed for any unlawful purpose.

(3) Where by virtue of subsection (1) the Minister or an officer authorised by the Minister has power to require the production of any books or documents from any body, the Minister or officer shall have the like power to require production of those books or documents from any person who appears to the Minister or officer to be in possession of them; but where any such person claims a lien on books or documents produced by him, the production shall be without prejudice to the lien.

(4) Any power conferred by or by virtue of this section to require a body or other person to produce books or documents shall include power—

(a) if the books or documents are produced—

(i)to take copies of them or extracts from them; and

(ii)to require that person, or any other person who is a present or past officer of, or is or was at any time employed by, the body in question, to provide an explanation of any of them;

(b) if the books or documents are not produced, to require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(5) If a requirement to produce books or documents or provide an explanation or make a statement which is imposed by virtue of this section is not complied with, the body or other person on whom the requirement was so imposed shall be guilty of an offence; but where a person is charged with an offence under this subsection in respect of a requirement to produce any books or documents, it shall be a defence to prove that they were not in his possession or under his control and that it was not reasonably practicable for him to comply with the requirement.

(6) A statement made by a person in compliance with a requirement imposed by virtue of this section may be used in evidence against him.

(7) Nothing in this section shall prevent the Minister from authorising a person other than an officer of his to exercise the functions which an officer of his may exercise under this section and, where the Minister so authorises, such person shall have the same rights, duties and obligations as if he were such officer.

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