Communications Regulation (Amendment) Act 2007

14.

Insertion into Principal Act of new sections 46A to 46E.

14.— The Principal Act is amended by inserting the following sections after section 46 (as substituted by section 13 ):

“Special powers enabling Minister to make regulations to give effect to European Communities instruments relating to communications matters.

46A.— (1) If regulations specified in Part 2 of Schedule 1 (inserted by section 18 of the Communications Regulation (Amendment) Act 2007) that give effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, create an offence that is triable summarily, and the Minister considers it is necessary to do so for the purpose of giving effect to the provision or act, the Minister may, by regulations, amend the regulations—

( a) to provide for the offence to be also triable on indictment, and

( b) subject to subsection (6), to make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions to which the offence relates.

(2) If regulations specified in Part 2 of Schedule 1 that give effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, prohibit or require the doing of an act, the Minister may, where he or she considers it necessary for the purpose of giving effect to the provision or act, make regulations amending the first-mentioned regulations—

( a) to provide that a contravention of the prohibited act, or a failure or refusal to perform the required act, is an offence,

( b) to provide for the offence to be triable—

(i) summarily, or

(ii) on indictment, if the Minister considers it necessary for the purpose of giving effect to the provision or act concerned, and

( c) subject to subsection (6), to make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions to which the offence relates.

(3) The Minister may make regulations for the purpose of giving effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, relating to—

( a) the provision of an electronic communications service, an electronic communications network or an associated facility, or

( b) the radio frequency spectrum or national numbering resource, or

( c) a postal service.

(4) Regulations under subsection (3) may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of those regulations (including provisions repealing, amending or applying, with or without modification, a related enactment).

(5) Regulations under subsection (3) may—

( a) provide for an offence under those regulations to be triable—

(i) summarily, or

(ii) on indictment, if the Minister considers it necessary for the purpose of giving effect to the provision or act referred to in subsection (3),

and

( b) subject to subsection (6), make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the act or omission to which the offence relates.

(6) The maximum fine that may be provided for in regulations under this section shall—

( a) in respect of the conviction on indictment of a body corporate of an offence under the regulations, not be greater than—

(i) €5,000,000, or

(ii) if 10 per cent of the turnover of the body is greater than that amount, an amount equal to that percentage,

or

( b) in respect of the conviction on indictment of any other person of such an offence, not be greater than €500,000.

(7) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations under subsection (1), (2) or (3), provide―

( a) for the High Court, on application by the Commission or some other person specified in the regulations, to make―

(i) an order requiring a specified person, or a person belonging to a specified class, to comply with an obligation imposed by or under the regulations, or

(ii) an order restraining such a person from continuing to contravene a prohibition or restriction specified in or under the regulations,

and

( b) for the High Court, on being satisfied that such a person has failed to comply with such an obligation, or has contravened such a prohibition or restriction, to order the person to pay a financial penalty of such amount as the Court considers appropriate, having regard to the circumstances of the failure to comply or contravention, including―

(i) the duration of the failure to comply or the contravention,

(ii) the effect of the failure to comply or contravention on consumers or users of the service or product provided or supplied by the person and on the person’s competitors,

(iii) the submissions of the Commission as to the appropriate amount of the penalty to be imposed, and

(iv) any excuse or explanation given by the person with respect to the failure to comply or contravention.

(8) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations under subsection (1), (2) or (3), provide—

( a) that if, after being convicted of an offence, a person continues to do the prohibited act, or to fail to do the required act, the person commits a further offence on each day or part of a day during which the act or failure continues, and

( b) that the person is to be liable on conviction for the further offence―

(i) if tried summarily, to a fine not exceeding €500, or

(ii) if tried on indictment, to a fine not exceeding €5,000.

However, if the regulations concerned provide for a person to be tried summarily for further offences that are alleged to have been committed on successive days, then, irrespective of anything to the contrary in the regulations concerned, the maximum fine that can be imposed for those offences under those regulations is €5,000.

(9) Section 2 of the Ministers and Secretaries (Amendment) (No. 2) Act 1977 does not apply to a power to make regulations for a purpose referred to in subsection (1), (2) or (3).

(10) In this section—

‘European Communities’ and ‘treaties governing the European Communities’ have the same meanings as they have in the European Communities Act 1972; and

‘turnover’ means, in relation to a body corporate, the turnover of the body in the financial year of the body ending immediately before the financial year in which the offence of which the body has been convicted was committed.

Admissibility of expert evidence in proceedings under this Act and related enactments.

46B.— (1) In civil or criminal proceedings under this Act or a related enactment, the opinion of any witness who appears to the court to possess the appropriate qualifications or experience about the matter to which the witness’s evidence relates is admissible in evidence of matters that call for expertise or special knowledge relevant to the proceedings.

(2) A court that admits evidence under subsection (1) may, if it is of the opinion that it is in the interests of justice to do so, direct that the use of the evidence is to be limited to specified purposes only.

Power of court to order copies of certain documents to be given to juries in certain criminal proceedings.

46C.— In a trial on indictment of an offence under this Act or a related enactment, the trial judge may order copies of any of the following documents to be given to the jury in such form as the judge considers appropriate:

( a) any document admitted in evidence at the trial;

( b) the transcript of the opening speeches of counsel;

( c) any charts, diagrams, graphics, schedules or agreed summaries of evidence produced at the trial;

( d) the transcript of the whole or any part of the evidence given at the trial;

( e) the transcript of the closing speeches of counsel;

( f) the transcript of the trial judge’s charge to the jury.

Presumptions to apply in civil and criminal proceedings under this Act and related enactments.

46D.— (1) The presumptions specified in this section apply in civil and criminal proceedings under this Act and under the related enactments.

(2) A document purporting to have been created by a person is presumed, unless the contrary is shown, to have been created by the person. Any statement contained in the document is, unless the document expressly attributes the statement to some other person, presumed to have been made by that person.

(3) A document purporting to have been created by a person and addressed and sent to a second person is presumed, unless the contrary is shown, to have been created and sent by the person and received by the second person. Any statement contained in the document is, unless the contrary is shown, presumed—

( a) to have been made by the person unless the document expressly attributes the statement to a third person, and

( b) to have come to the notice of the second person.

(4) The author of a document retrieved from an electronic database is, unless the contrary is shown, presumed to be the person who ordinarily uses the database in the course of that person’s business.

(5) If an authorised officer who has, in the exercise of the officer’s powers under this Act, removed one or more documents from a place, gives evidence in proceedings under this Act or a related enactment that, to the best of the officer’s knowledge and belief, the material is the property of a specified person, the material is, unless the contrary is shown, presumed to be that person’s property.

(6) If, in accordance with subsection (5), an authorised officer gives evidence that material is the property of a specified person and also gives evidence that, to the best of the officer’s knowledge and belief, the material relates to a particular trade, profession or other activity carried on by that person, the material is, unless the contrary is shown, presumed to be material that relates to such a trade, profession or activity.

(7) A reference in this section to a document is a reference to anything that is in writing.

Admissibility of statements contained in certain documents.

46E.— (1) For the purposes of this section, a person is a competent person if the person is one who might reasonably be expected to have knowledge of the act or omission in question.

(2) A document that contains a statement by a competent person asserting that an act was done or was omitted to be done by a specified person is admissible in evidence in proceedings for an offence under this Act, or under a related enactment, that involves or relates to doing or omitting to do the act, but only if the document satisfies the conditions set out in subsection (3).

(3) The conditions referred to in subsection (2) are that the document—

( a) came into existence before proceedings for the offence were initiated, and

( b) was prepared otherwise than in response to an enquiry made or question put by a Commissioner, a member of the Commission’s staff, a member of the Garda Síochána or an authorised officer relative to any aspect of the proceedings.

(4) In estimating the weight (if any) to be attached to a statement contained in a document admitted in evidence in the proceedings, the court shall take into account the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

(5) If a document containing a statement is admitted in evidence under this section—

( a) evidence that, if the person making the statement had been called as a witness, would have been admissible as relevant to the person’s credibility as a witness is admissible for that purpose, and

( b) evidence may, with the leave of the court, be given of any matter that, had the person been called as a witness, could have been put in cross-examination as being relevant to the person’s credibility but of which evidence could not be adduced by the cross-examining party, and

( c) evidence tending to prove that the person, whether before or after making the statement, made (whether orally or not) a statement that is inconsistent with it is (if not already admissible by virtue of another enactment or a rule of common law) admissible for the purpose of showing that the person had contradicted himself or herself.

(6) This section does not affect the admissibility, in proceedings for an offence under this Act or a related enactment, of a document as evidence of matters stated in it, if the document would be admissible in the proceedings because of the operation of any other enactment or a rule of common law.”.