Garda Síochána Act 2005

96

Powers relating to investigation under section 95 .

96.— (1) For the purpose of an investigation under section 95 , the Ombudsman Commission—

( a) may require a person who, in its opinion, possesses information or has a document or thing in his or her power or control that is relevant to the investigation, to provide that information, document or thing to the Commission, and

( b) where appropriate, may require that person to attend before the Commission for that purpose,

and the person shall, subject to subsection (4), comply with the requirement.

(2) A requirement under subsection (1) shall specify—

( a) a period within which the person is to comply with the requirement, and

( b) as appropriate—

(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the document or thing concerned, or

(ii) the place to which the person shall send the information, document or thing concerned.

(3) A person required to attend before the Ombudsman Commission under subsection (1)

( a) shall answer fully and truthfully any question put to him or her by the Commission, and

( b) if so requested by the Commission, shall sign a declaration of the truth of his or her answer to the question.

(4) A person may not be required under subsection (1)(a) or (3)(a) to provide any information, document or thing that is designated, or is of a class designated, under section 126 as relating to the security of the State, except in accordance with a direction of the Minister.

(5) If a person required under subsection (1)(a) or (3)(a) to provide any information, document or thing claims that subsection (4) applies in relation to the matter, the Ombudsman Commission shall refer the matter to the Minister.

(6) If the Minister determines that the disclosure of all or part of the information, document or thing specified in the requirement would not be prejudicial to the security of the State or that its disclosure is necessary for the proper investigation of a matter concerning the death of, or serious harm to, a person as a result of Garda operations or while in the care or custody of the Garda Síochána, the Minister may issue a direction—

( a) specifying that all or part, as the case may be, of the document, information or thing be disclosed, and

( b) imposing any conditions or restrictions relating to the security of the State that the Minister considers appropriate.

(7) If it appears to the Ombudsman Commission that a person has failed to comply with a requirement under subsection (1)(a) or (3)(a) for any reason other than one relating to the security of the State, the Commission may apply to the Circuit Court for an order under subsection (8).

(8) If satisfied after hearing the application about the person’s failure to comply with the requirement in question, the Circuit Court may, subject to subsection (9), make an order requiring that person to comply with the requirement.

(9) If the Circuit Court is of opinion that the requirement in question purports to require the person concerned to provide any information, document or thing—

( a) in respect of which he or she is entitled to claim legal professional privilege, or

( b) the disclosure of which would—

(i) jeopardise a person’s safety, or

(ii) for any other reason not be in the public interest,

the Court shall, to that extent, set aside, vary or attach conditions to the requirement.

(10) Any information, document or thing provided by a person in accordance with a requirement under subsection (1)(a) or (3)(a) or with a direction under subsection (6) is not admissible against that person in criminal proceedings and this shall be explained to the person in ordinary language by the Ombudsman Commission.

(11) A person who fails to comply with a direction under subsection (6) or an order under subsection (8) is guilty of an offence and is liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(12) An application under subsection (7) to the Circuit Court shall be made to a judge of the Circuit Court for—

( a) the circuit in which the respondent resides or ordinarily carries on any profession, business or occupation, or

( b) if the respondent is a member of the Garda Síochána, the circuit in which that member is stationed.

(13) For the purpose of subsection (10), “criminal proceedings” does not include disciplinary proceedings.