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6 2009

Charities Act 2009

PART 4

Protection of Charitable Organisations

Investigation of affairs of charitable organisation.

64 .— The Authority may appoint a person (in this Act referred to as an “inspector”) or more than one such person to investigate the affairs of a charitable organisation and to prepare a report thereon in such manner as the Authority shall direct.

Production of documents and evidence on investigation.

65 .— (1) A charity trustee or agent of a charitable organisation shall—

(a) produce to an inspector all books, documents and other records of or relating to the charitable organisation that are in his or her possession, under his or her control or within his or her procurement,

(b) attend before an inspector, and

(c) give to an inspector all assistance in connection with the investigation which he or she is reasonably capable of giving,

when required to so do by an inspector.

(2) If an inspector considers that a person (other than a charity trustee or agent of a charitable organisation) is or may be in possession of information concerning its affairs, he or she may require that person to—

(a) produce to him or her any books, documents or other records in his or her possession, under his or her control or within his or her procurement relating to the charitable organisation,

(b) attend before him or her, and

(c) give to him or her all such other assistance in connection with the investigation as he or she is reasonably capable of giving.

(3) If an inspector has reasonable grounds for believing that a charity trustee of a charitable organisation whose affairs the inspector is investigating maintains or has maintained a bank account (howsoever described), whether alone or jointly with another person and whether in the State or elsewhere, into or out of which there has been paid money that is connected with any act or omission by that charity trustee constituting misconduct (whether fraudulent or not) in respect of that charitable organisation, the inspector may require the charity trustee to produce to him or her all documents in the charity trustee's possession, under his or her control or within his or her procurement, relating to that bank account.

(4) An inspector may examine on oath a charity trustee, member of staff or agent of the charitable organisation, or a person to whom subsection (2) applies, in relation to the affairs of the charitable organisation, and may administer an oath accordingly.

(5) A person who contravenes this section or who fails to comply with a requirement under this section shall be guilty of an offence.

(6) In this section—

“agent” includes, in relation to a charitable organisation, a banker, solicitor or auditor to the charitable organisation, and any person who was but is no longer an agent to the charitable organisation;

“ bank 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 under section 9 of that Act;

“ charity trustee ” includes, in relation to a charitable organisation, a person who was, but is no longer, a charity trustee of the charitable organisation.

Inspector's reports.

66 .— (1) An inspector appointed under section 64 may, and if so directed by the Authority shall, make interim reports to the Authority and on the conclusion of the investigation, shall make a final report to the Authority.

(2) Notwithstanding anything contained in subsection (1), an inspector appointed under section 64 may, at any time in the course of his or her investigation, without the necessity of making an interim report, inform the Authority of matters coming to his or her knowledge as a result of the investigation tending to show that an offence has been committed.

(3) The Authority may, if it considers appropriate—

(a) furnish a copy of a report of an inspector to the charitable organisation that is the subject of the report,

(b) on request, and payment of such fee as may be prescribed by regulations made by the Minister, furnish a copy of a report of an inspector to—

(i) a charity trustee of the charitable organisation that is the subject of the report,

(ii) any person whose conduct is referred to in the report,

(iii) the auditors of that charitable organisation,

(iv) any other person (including a member of staff of the charitable organisation) whose financial interests appear to the Authority to be affected by the matters dealt with in the report whether as a creditor of the charitable organisation or otherwise,

(v) the Central Bank, in any case in which the report of the inspector relates, wholly or partly, to the affairs of the holder of a licence under section 9 of the Central Bank Act 1971,

(vi) the Revenue Commissioners, or

(vii) the Director of Public Prosecutions,

or

(c) cause any such report to be published in such manner as it considers appropriate.

(4) The Authority may, where it considers appropriate, direct that such part of a report to which this section applies as is specified in the direction shall—

(a) be omitted from a copy furnished under subsection (3)(a) or (b)(i), (ii), (iii) or (iv), and

(b) not be published under subsection (3)(c).

Expenses of investigation of affairs of charitable organisation.

67 .— (1) The expenses of and incidental to an investigation by an inspector shall be paid by the Authority.

(2) Where a person is—

(a) convicted on indictment of an offence in proceedings brought as a consequence of an investigation, or

(b) ordered to pay damages or restore any property in proceedings brought as a consequence of an investigation,

the court in those proceedings may order the person to pay to the Authority such sum as it shall specify not exceeding any amount paid by the Authority under subsection (1) in respect of that investigation.

Power of Authority to require production of documents.

68 .— (1) Subject to subsection (2), the Authority may, by direction in writing require a charitable organisation or the charity trustees of a charitable organisation, at such time and place as may be specified in the direction, to produce such books, documents or other records as may be so specified.

(2) A direction under subsection (1) shall not be given unless the Authority is of opinion that—

(a) it is necessary to examine the books, documents or other records of the charitable organisation for the purpose of determining whether an inspector should be appointed to conduct an investigation into the affairs of the charitable organisation under this Part,

(b) the affairs of the body are being or have been conducted with intent to defraud any person,

(c) any act or omission committed by or on behalf of the charitable organisation, or proposed to be so committed is, or would if committed, be unlawful, or

(d) the body was formed for any fraudulent, or other unlawful, purpose.

(3) The power of the Authority under subsection (1) to require a charitable organisation or charity trustee to produce any books, documents or other records, shall include the power to require any other person to produce those books, documents or records where it appears to the Authority that he or she is in possession of them.

(4) Any power conferred by or by virtue of this section to require a charitable organisation, the charity trustees of a charitable organisation or other person to produce books, documents or records shall include the power—

(a) where the books, documents or records are produced—

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

(ii) to require the charity trustees or any former charity trustee of the charitable organisation or any member of staff or former member of staff of the charitable organisation or any other person present when they are produced to provide an explanation as to the content or meaning 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 or her knowledge and belief, where they are.

(5) If a charitable organisation that is a body corporate contravenes this section or fails to comply with a requirement under this section it shall be guilty of an offence.

(6) If a charity trustee or other person contravenes this section or fails to comply with a requirement under this section he or she shall be guilty of an offence.

(7) If, in relation to a charitable organisation, there is a contravention of this section or a failure to comply with a requirement under this section each of the charity trustees of the charitable organisation shall be guilty of an offence.

(8) In proceedings brought against a person for an offence under this section consisting of a failure by him or her to produce a book, document or other record it shall be a defence for the person to prove that the book, document or other record was not in his or her possession, under his or her control or within his or her procurement when he or she was required to produce it and that at that time it was not reasonably practicable for him or her to comply with the requirement.

(9) In this section references to the Authority shall be construed as including references to an officer or member of the staff of the Authority duly authorised by the Authority to perform functions under this section.

Entry and search of premises.

69 .— (1) Upon the application of an inspector or an officer or member of staff of the Authority, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that there has been a failure to comply with a requirement under section 68 in respect of any books, documents or other records and such books, documents or other records are on any premises (including a dwelling), issue a warrant authorising a named inspector or a named officer or member of staff of the Authority, accompanied by such officers or members of staff of the Authority or members of the Garda Síochána as may be necessary, at any time or times (not later than the expiration of one month from the date of the issue of the warrant), to—

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

(b) search the premises and inspect and take possession of all books, documents or records as appear to be the books, documents or records that are the subject of a requirement under section 68 , and

(c) take all necessary measures to ensure that such books, documents or other records are preserved and not interfered with.

(2) Subject to subsection (3), any books, documents or other records of which possession is taken in accordance with a warrant under this section may be retained for a period of 3 months.

(3) If, within the period specified in subsection (2), proceedings for an offence are brought against any person and books, documents or other records of which possession is taken in accordance with a warrant under this section are required for the purposes of those proceedings, those books, documents or records may be retained until final judgment is entered in those proceedings.

(4) Any person who obstructs or interferes with an inspector or an officer or member of the staff of the Authority or a member of the Garda Síochána in the course of exercising a power conferred on him or her by a warrant under this section or impedes the exercise by the inspector, officer, member of staff or member, as the case may be, of such power shall be guilty of an offence.

Provision for security of information.

70 .— (1) Subject to sections 66 and 71 , no book, document or other record obtained under section 68 or 69 shall, without the prior consent of the charitable organisation to which it relates, be disclosed, except to a competent authority, unless the disclosure is required—

(a) for the purpose of detecting, investigating or prosecuting an offence,

(b) in the case of a charitable organisation that is a company, for the purposes of proceedings brought by the Director of Corporate Enforcement under the Companies Acts for the winding up of the company,

(c) for the purposes of an application under section 69 (1).

(2) A person who publishes or discloses any information, book or document in contravention of this section shall be guilty of an offence.

(3) In this section “competent authority” means—

(a) the Authority,

(b) the Minister,

(c) a person duly authorised by the Minister for the purposes of this section,

(d) an inspector,

(e) the Minister for Finance,

(f) the Revenue Commissioners,

(g) the Central Bank, or

(h) a court of competent jurisdiction.

Inspector's reports to be evidence.

71 .— A document purporting to be a copy of a report of an inspector appointed under section 64 shall, unless the contrary is shown, be evidence in any proceedings (other than proceedings for an offence)—

(a) of the matters specified therein without further proof, and

(b) of the opinion of the inspector in relation to any matter contained in the report.

Saving for privileged information.

72 .— (1) Nothing in this Part shall operate to require a person to produce to an inspector books, documents or other records, or to provide any information, that he or she would be entitled to refuse to produce or provide on the grounds of legal professional privilege or authorise the taking of possession of any such books, documents or records.

(2) A statement or admission made by a person pursuant to a requirement under this Part shall not be admissible in evidence in proceedings brought against that person for an offence (other than an offence under this Part).

Intermediate sanctions.

73 .— (1) Where, in relation to a registered charitable organisation, there is a contravention of section 47 , 48 , 50 or 52 or a direction under section 51 (2) and the Authority considers that it would be reasonable and proportionate in the circumstances not to bring proceedings for an offence consisting of the contravention but instead to impose an intermediate sanction, it may if the charity trustees undertake to—

(a) rectify the contravention within such period as the Authority shall specify,

(b) accept the imposition of intermediate sanctions by the Authority, and

(c) adopt such course of action (if any) as may be agreed upon by them and the Authority for the purpose of ensuring that the contravention does not occur again,

impose one or more intermediate sanctions on the charity trustees or the charitable organisation, as it considers appropriate.

(2) Where the Authority proposes to perform functions under subsection (1), it shall serve a notice on the registered charitable organisation or the charity trustees concerned of the proposal.

(3) Subject to subsection (4), proceedings for an offence consisting of the contravention concerned shall not be brought if the charity trustees of the charitable organisation concerned give an undertaking in accordance with subsection (1).

(4) Where the charity trustees of a registered charitable organisation refuse to give an undertaking in accordance with subsection (1), or having given such an undertaking fail to—

(a) rectify the contravention concerned within the period specified by the Authority, or

(b) implement the measures specified in an agreed course of action,

proceedings for the offence consisting of the contravention concerned shall be brought.

(5) In this section “ intermediate sanction ” means—

(a) removal of the charitable organisation from the register for such period as the Authority shall determine, or

(b) publication of particulars of the contravention concerned on the internet website of the Authority.

Protection of charitable organisations.

74 .— (1) Where the High Court is satisfied, upon the application of the Authority, that—

(a) an offence under this Act has been or is being committed in relation to a charitable organisation,

(b) any provision of this Act has not been or is not being complied with in relation to a charitable organisation,

(c) an offence under the Act of 2001 has been or is being committed in relation to the property of a charitable organisation,

(d) any property of the charitable organisation is being misapplied or is being dealt with or managed in a manner that endangers the property, or

(e) there has been any other misconduct or mismanagement on the part of any charity trustee or member of staff in relation to the affairs of the charitable organisation,

the High Court may make such order as it considers appropriate in the circumstances.

(2) The High Court may make—

(a) an interim order,

(b) an interlocutory order, or

(c) a permanent order,

under this section.

(3) An application for an interim order under this section may be made ex parte.

(4) In this section—

“ order ” includes—

(a) an order suspending or removing any charity trustee or member of the staff of a charitable organisation,

(b) an order prohibiting the removal, sale or application of any property of the charitable organisation,

(c) an order vesting any of the property of a charitable organisation in the Authority or such other person as the court considers appropriate,

(d) an order appointing such person or persons as it considers appropriate to act as charity trustee or charity trustees of the charitable organisation in addition to, or instead of, any existing charity trustees,

(e) an order directing any person who is a debtor of the charitable organisation not to pay his or her debt to the organisation during such period as may be specified in the order, or to pay it to such person as may be so specified in satisfaction of the debt to the charitable organisation, and

(f) an order restricting or prohibiting the entering into of such agreements, or agreements of such a class, as may be specified in the order, by the charitable organisation.