Central Bank and Credit Institutions (Resolution) Act 2011

SCHEDULE 1

Powers to Require Persons to Give Evidence or Produce Documents

Section 36(6) .

Assessor may require persons to give evidence or produce documents.

1. (1) If the Assessor believes on reasonable grounds that a person may be able to give evidence, or to produce a document, that relates to a matter concerning the performance or fulfillment of any of the Assessor’s functions or objectives, he or she may serve on the person a notice requiring the person—

( a) to appear before the Assessor to give evidence about the matter, or

( b) to produce the document for examination.

(2) The notice shall—

( a) specify the matter to which the evidence relates, or specify or describe the document to be produced, as the case requires, and

( b) in the case of a notice to appear before the Assessor to give evidence—

(i) specify the date, time and place at which the person is required to appear before the Assessor, and

(ii) state whether and to what extent the evidence is to be given orally or on affidavit.

(3) The notice may require the person concerned to appear before a specified member of the Assessor’s staff and, if it does so, a reference in this Schedule to the Assessor is to be read as including the staff member.

Offence of failing to appear before Assessor.

2. (1) A person commits an offence if, having been required to appear before the Assessor in compliance with a requirement made under paragraph 1, the person fails to comply with the requirement, and has not been excused, or released from further attendance, by the Assessor.

(2) Subparagraph (1) does not apply if the person has a reasonable excuse.

Offence of failing to produce document.

3. (1) A person commits an offence if, having been required to produce a document to the Assessor in compliance with a requirement under paragraph 1, he or she fails to comply with the requirement and has not been excused by the Assessor.

(2) Subparagraph (1) does not apply if—

( a) the person does not have the document and cannot by any reasonable effort obtain it, or

( b) the person could not be compelled to produce it in a court of law.

Conduct of proceedings under this Schedule.

4. (1) The Assessor may require a person who appears before the Assessor in compliance with a requirement made under paragraph 1 to swear an oath.

(2) The Assessor may administer an oath for the purposes of this paragraph.

(3) The Assessor may permit a person giving oral evidence to be cross-examined by a person nominated by the Assessor under such procedures as the Assessor may determine.

Proceedings normally to be in private.

5. (1) Except as provided by this paragraph, evidence to be given, or a document to be produced, to the Assessor by a person who appears before him or her in compliance with a requirement made under paragraph 1 is to be given or produced in private.

(2) If a person who appears before the Assessor in compliance with a requirement made under paragraph 1 requests that the matter be dealt with in public, the Assessor shall comply with the request unless the matter raises issues that in the Assessor’s opinion should be dealt with in private.

(3) If the Assessor is satisfied that it is desirable in the public interest that the evidence to be given should be given, or the document to be produced should be produced, in public, the Assessor may direct accordingly.

(4) If the evidence is to be given, or the document is to be produced, in private, the Assessor may do either or both of the following:

( a) give directions as to the persons (other than the Assessor or the Assessor’s staff) who may be present during the proceeding;

( b) give directions preventing or restricting the publication of the whole or any part of the evidence or of matters contained in the document.

(5) If the evidence is to be given, or the document is to be produced, in private, a person (other than the person required to appear before the Assessor, the Assessor or a member of the Assessor’s staff) may be present only if entitled to be present because of a direction given under subparagraph (4)(a).

(6) A person who contravenes a direction of the Assessor under subparagraph (4)(b) commits an offence.

Offence of refusing to be sworn or answer question.

6. (1) A person appearing before the Assessor in compliance with a requirement made under paragraph 1 commits an offence if the person—

( a) refuses or fails to swear an oath on being required to do so by the Assessor, or

( b) refuses or fails to give evidence in compliance with a requirement made under paragraph 1, or

( c) refuses or fails to answer a question put to the person by the Assessor or in cross-examination with the Assessor’s permission.

(2) Subparagraph (1) does not apply if the person has a reasonable excuse.

(3) It is a reasonable excuse for the purposes of subparagraph (2) for a person to refuse or fail to answer a question that the answer might tend to incriminate the person.

(4) Subparagraph (3) does not limit what is a reasonable excuse for the purposes of subparagraph (2).

Protection, etc., of persons appearing before Assessor.

7. Subject to this Schedule, a person who appears before the Assessor in compliance with a requirement made under paragraph 1 has the same protection and privileges and is, in addition to the offences under this Schedule, subject to the same liabilities as a witness in proceedings in the Court.

Payment of allowances and expenses to persons who appear before Assessor.

8. (1) A person who appears before the Assessor in compliance with a requirement under paragraph 1 is entitled to be paid such allowances and travelling or other expenses as are payable to or in respect of a witness attending in civil proceedings before the Court.

(2) All allowances and expenses payable under subparagraph (1) are payable by the Assessor.

Assessor’s certificate to Court of failure to produce document, etc.

9. (1) If a person refuses or fails—

( a) to produce to the Assessor a document in accordance with a requirement by the Assessor,

( b) to attend before the Assessor when required so to do, or

( c) to answer a question put to him or her by the Assessor,

the Assessor may certify the refusal or failure to the Court.

(2) The Court may, after hearing any witnesses who may be produced against or on behalf of the person alleged to have so refused or failed and any statement which may be offered in defence, make any order or give any direction it thinks fit.

(3) Without prejudice to the generality of subparagraph (2), the Court may—

( a) order the person concerned to attend or re-attend before the Assessor, or to produce a particular document or answer a particular question put to him or her by the Assessor, or

( b) order that the person concerned need not produce a particular document, or answer a particular question put to him or her by the Assessor.