Revenue Note for Guidance

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Revenue Note for Guidance

912B Questioning of Suspects in Garda Síochána Custody in certain circumstances

Summary

This section provides for an authorised officer of the Revenue Commissioners to question suspects in Garda custody, who have been arrested and detained by the Gardai in respect of certain Revenue offences. The offences concerned are serious indictable offences under Revenue law which are “arrestable offences” within the meaning of section 2 of the Criminal Law Act 1997 i.e. offences which may be punished by imprisonment for a term of five years, or by a more severe penalty. The section limits the application of the power to such offences under the Customs Acts, under the statutes relating to excise and to serious extraction type frauds relating to Relevant Contracts Tax and VAT under certain of the provisions of sections 1078 and 1078A.

Details

Definitions

(1) “authorised officer” is defined to ensure that only Revenue officials specifically authorised in writing to exercise the questioning power are able to use it. The officials concerned are those engaged in criminal investigation work.

“specified offence” defines the offences in respect of which the power of questioning applies. These are serious indictable offences under Revenue law which are “arrestable offences” within the meaning of section 2 of the Criminal Law Act 1997. An arrestable offence is an offence that may be punished by imprisonment for a term of five years, or by a more severe penalty. Under the definition the application of the power is limited to arrestable offences under —

  • (1)(a) the Customs Acts and related legislative instruments, including Revenue Offences under section 1078 or 1078A, insofar as these relate to customs,
  • (1)(b) the statutes relating to excise, including Revenue Offences under section 1078 or 1078A, insofar as these relate to excise, and
  • (1) (c) & (d) to serious extraction type frauds relating to Relevant Contracts Tax and VAT under certain of the provisions of sections 1078 and 1078A. These frauds involve individuals establishing bogus identities or sham businesses and claiming repayments of RCT or VAT using fictitious invoices or fictitious documentation.

The specific provisions of section 1078 and 1078A referred to in subsection (1)(c) & (d) are as follows —

  • Section 1078(1A) relates to the offence of facilitating the fraudulent evasion of tax.
  • Section 1078(2)(c) relates to the offence of falsely obtaining or claiming relief or exemption from, or repayment of, any tax.
  • Section 1078(2)(d) relates to the offence of knowingly or wilfully issuing or producing incorrect invoices, receipts or instruments in connection with any tax.
  • Section 1078(2)(ii) relates to the offence of failing to deduct, or remit, tax under Relevant Contracts Tax.
  • Section 1078A relates to the offence of falsifying, concealing, destroying or otherwise disposing of material relevant to the investigation of a revenue offence.

(2) The power of questioning in Garda custody only applies in relation to the serious arrestable offences specified in the section.

(3) Where a person has been arrested without warrant by a member of the Garda Síochána on suspicion of committing, or of having committed, a specified offence and has been detained in a Garda station under the provisions of section 4 of the Criminal Justice Act 1984, then up to two authorised Revenue officers may attend and participate in the questioning of the suspect. However, this may only take place where the Garda requests the attendance of the authorised Revenue officers with a view to progressing the investigation of the offence and they must be accompanied by a member of the Gardai at all times.

(4) An authorised officer may not commit any act or make any omission in the course of being involved in the questioning of a suspect, which if done or made by a member of the Gardai would be in breach of the Custody Regulations. The Custody Regulations govern the detention of suspects in Garda custody.

(5) Notwithstanding subsection (4), an act or omission done or made by an authorised officer in contravention of the Custody Regulations shall not of itself leave the authorised officer liable to criminal or civil proceedings or, of itself, affect the lawfulness of the custody of the suspect or the admissibility in evidence of any statement made by the suspect.

Relevant Date: Finance Act 2019