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31 2005

Railway Safety Act 2005

PART 7

Enforcement

Inspectors.

73. —(1) The Commission may appoint any of its officers, consultants, advisors or other persons as it deems appropriate to be inspectors for the purposes of this Act and such appointment may be revoked by the Commission.

(2) Each commissioner shall, on his or her appointment, be deemed to be an inspector for the purposes of this Act.

(3) A person appointed under subsection (1) shall, on his or her appointment, be furnished with a warrant of his or her appointment and when exercising any power conferred on an inspector by this Act shall, if requested by any person thereby affected, show the warrant to that person.

(4) For the purpose of the exercise of functions of the Commission under this Act, an inspector may—

(a) travel on any train or any part of a train of any railway undertaking,

(b) enter, inspect, examine and search at all times, any place or premises which he or she has reasonable cause to believe is railway property,

(c) enter into any place, premises or vehicle which he or she has reasonable cause to believe contains records or information relevant to and necessary for the exercise of functions of the Commission under this Act and therein carry out such searches, inspections and examinations as he or she considers reasonable and necessary,

(d) have a member of the Garda Síochána accompany him or her if the inspector has reasonable cause to apprehend any serious obstruction in the execution of his or her duty,

(e) take with him or her any other person or any equipment or materials required for any purpose for which the power of entry is being exercised,

(f) where he or she has reasonable cause to believe that at or in any railway property an offence under this Act has been or is being committed, use reasonable force where necessary in order to enter that property,

(g) make such examination and inquiry as may be necessary,

(h) require the production of any record (and, in the case of information in non-legible form, to reproduce it in legible form) which in the opinion of the inspector is necessary for him or her to inspect, examine and copy or require that a copy of it or of any entry therein be provided to him or her,

(i) inspect and take copies of or extracts from any such records (including, in the case of information in non-legible form, a copy of or extract from such information in permanent legible form),

(j) remove and retain such records for such period as may be reasonable for further examination,

(k) require any person whom he or she has reasonable cause to believe to be able to give information relevant for the purposes of this Act, to answer such questions with respect to matters under this Act as he or she thinks fit to ask and to sign a declaration of the truth of the answers given,

(l) direct that any railway property or part thereof and anything therein shall be left undisturbed for so long as it is reasonably necessary for the purpose of this Act,

(m) take samples or, as regards any article or substance he or she finds, require the railway undertaking or any member of staff of, or other person engaged by, the railway undertaking or any person who appears to him or her to be in possession of the article or substance, to supply without payment, for test, examination or analysis sufficient samples thereof,

(n) cause any article or substance found which appears to him or her to be reasonably necessary for the purpose of this Act to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary for the purposes of the process or test) and where an inspector proposes to exercise the power conferred by this paragraph in the case of an article or substance found, he or she shall, if so requested by a person who at the time is present and who may have responsibilities in respect of such article or substance, cause anything which is to be done by virtue of that power to be done in the presence of that person,

(o) in relation to any article or substance found at or in railway property in accordance with paragraph (n), take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

(i) to examine or arrange for the examination of it and do to it anything which he or she has power to do under paragraph (n),

(ii) to ensure that it is not tampered with before the examination of it is completed, or

(iii) to ensure that it is available for use as evidence in any proceedings,

(p) take any measurements, photographs or video recordings or make any sound, electrical or other recordings which he or she considers necessary for the purposes of this Act,

(q) require any person to afford him or her such facilities and assistance within his or her control or responsibilities as are reasonably necessary to enable him or her to exercise any of the powers conferred on him or her under this Act,

(r) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material to afford the inspector all reasonable assistance in relation to its use, and

(s) require any railway undertaking to have any train, railway infrastructure, equipment, system, or procedure examined and tested at the undertaking's expense where, in his or her opinion, this is necessary for the purposes of this Act.

(5) A person who is being interviewed under subsection (4)(k) or section 74 may, if he or she requests—

(a) where the person is a member of the staff of the railway undertaking or a person engaged by the undertaking, be accompanied—

(i) by one other member of the staff of the railway undertaking, or of the person engaged by the undertaking,

(ii) by one other person from an organisation which represents, as the case may be, the staff of the undertaking or the person engaged by the undertaking, or

(iii) at his or her own expense, by a legal or other adviser,

or

(b) where the person is not a member of the staff of the railway undertaking or a person engaged by the undertaking, be accompanied, at his or her own expense, by a legal or other adviser.

(6) The sole function of a person permitted to accompany another person in accordance with subsection (5) shall be the provision of advice to the person being interviewed.

(7) A person permitted to accompany another person in accordance with subsection (5) shall, if directed by the inspector concerned, desist from doing anything which, in the opinion of the inspector, frustrates the orderly and efficient conduct of the interview.

(8) Before exercising the power conferred by subsection (4)(n) in the case of any article or substance, an inspector shall, in so far as it is reasonably practicable to do so, consult such persons as appear to him or her to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he or she proposes to do under that power.

(9) Where, under the power conferred by subsection (4)(o), an inspector takes possession of any article or substance found at or in any railway property, he or she shall, if it is practicable for him or her to do so, take a sample thereof and give to a responsible person at the place of work a portion of the sample marked in a manner sufficient to identify it.

(10) An inspector, for the purpose of carrying out his or her functions under this Act, shall have unhampered access to a railway incident site.

(11) The Commission shall consult with railway undertakings in relation to procedural arrangements for entry by inspectors upon railway property.

(12) An inspector shall not, except under a warrant under subsection (14) or with the consent of the occupier, enter a domestic dwelling for the purposes of this section.

(13) Where an inspector in the exercise of his or her powers under this section is prevented from entering any premises, place or vehicle, an application may be made under subsection (14) authorising such entry.

(14) If a judge of the District Court is satisfied on the sworn information of an inspector that there are reasonable grounds for suspecting that information required by an inspector for the purpose of this Act is held at any premises, place or vehicle, the judge may issue a warrant authorising the inspector, accompanied if the inspector considers it necessary by other inspectors or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production of the warrant if so required, to enter, if need be by reasonable force, the premises, place or vehicle and exercise all or any of the powers conferred on an inspector under this Part.

(15) In this section, “railway property” means all land, buildings, railway infrastructure, rolling stock and vehicles under the control of a railway undertaking.

Provision of records and other information.

74. —(1) Where, in the opinion of an inspector carrying out an inspection under this Part, an inspection of any record may be necessary for the purpose of exercising his or her functions under this Act, the inspector may require a railway undertaking or other relevant person to deliver to a place nominated by the inspector, and within such reasonable period as the inspector specifies, such record to enable the inspector to inspect and copy it and the railway undertaking or other relevant person shall comply with the requirement.

(2) An inspector may require the attendance before him or her of any person in the jurisdiction for the purpose of providing to the inspector any information which may be known to the person and which, in the inspector's opinion may be necessary for the purposes of exercising a function under this Act and the person shall comply with the requirement.

(3) A person required to attend before an inspector in accordance with subsection (2) shall be entitled to the reimbursement by the Commission of any reasonable expenses incurred in connection with his or her attendance.

(4) An inspector may also, for the purpose of exercising his or her functions under this Act—

(a) examine any person required to attend before him or her and may require answers or returns to any inquiry he or she thinks fit to make, and

(b) administer an oath and require any person examined to make and sign a declaration of the truth of the statements made by the person in his or her examination.

(5) An inspector may make such copies or take such extracts from the information gathered under subsection (4) as the inspector considers necessary for the purposes of the investigation.

Requirement to give name and address, obstruction, arrest, offence.

75. —(1) A member of the Garda Síochána accompanying an inspector under this Part may require of any person his or her name and address and may, if such person refuses or fails to give his or her name and address or gives a name or address which the member has reasonable grounds for believing to be false or misleading, arrest such person without warrant.

(2) Where a person, when his or her name and address is required of him or her under this section, refuses or fails to give his or her name and address or gives a name or address which is false or misleading, such person is guilty of an offence.

(3) A member of the Garda Síochána accompanying an inspector under this Part may arrest without warrant any person who obstructs or interferes with an inspector exercising a power under this Part or refuses to comply with a request or requirement of an inspector under this Part.

(4) A person who obstructs or interferes with an inspector in exercise of any power conferred on an inspector under this Part, or who fails or refuses to comply with a request or requirement of an inspector under this Part, is guilty of an offence.

(5) A person who wilfully gives to an inspector information which he or she knows to be false or misleading in a material respect, or makes any false or misleading statement reckless as to its truth or otherwise, is guilty of an offence.

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 3 months or to both.

(7) In this section, a reference to an inspector includes a reference to a tribunal of inquiry under section 64 .

Improvement plan.

76. —(1) Where an inspector is of the opinion that an activity being or likely to be carried on by or under the control or on behalf of—

(a) a railway undertaking and the activity involves, or is likely to involve, a risk to the safety of persons, or

(b) any other person on or near a railway and where the activity poses, or is likely to pose, a danger to the safety of persons involved in the operation of the railway or being carried on the railway,

the inspector may give a direction in writing to that railway undertaking or person requiring the submission to the inspector, within a time specified in the direction of a plan (“improvement plan”) specifying the remedial action proposed to be taken to rectify the matters set down in the direction.

(2) Where an improvement plan is submitted in accordance with subsection (1) or re-submitted under paragraph (b), an inspector shall, within 30 days, write to the railway undertaking or person concerned—

(a) stating that he or she is satisfied with the remedial action proposed to be taken, or

(b) if he or she is not satisfied that the plan is adequate, directing that the plan be revised and re-submitted to him or her within a time specified in the direction.

(3) An inspector may withdraw a direction under this section at any time before a date specified therein or may extend and further extend such date.

Improvement notice.

77. —(1) Where an inspector is of the opinion that a railway undertaking or other person is contravening or has contravened or is failing to comply or has failed to comply with any of the provisions of this Act or has failed, following a direction under section 76 , to submit or implement an appropriate improvement plan, the inspector may serve on that railway undertaking or person a notice (“improvement notice”) in writing signed by him or her stating that he or she is of that opinion and the improvement notice shall—

(a) specify the provision as to which the inspector is of that opinion,

(b) give particulars of the reasons why the inspector is of that opinion,

(c) where applicable, state that the railway undertaking or person has failed to submit or implement an improvement plan, and

(d) direct that railway undertaking or person to remedy the alleged contraventions by a date specified in the notice, which shall not be earlier than the period within which an appeal can be brought under subsection (4).

(2) An improvement notice may include directions as to the measures to be taken to remedy the alleged contraventions set out in the notice.

(3) Where an inspector proposes to serve an improvement notice, he or she shall first notify the railway undertaking or person concerned in writing of his or her intention to serve the improvement notice and the railway undertaking or person in question may, within 21 days, make representations to the inspector, who shall consider them.

(4) Where an inspector decides, having considered any representations made to him or her under subsection (3), to serve an improvement notice, a railway undertaking or person which is aggrieved by such improvement notice may, within the period of 14 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the judge may—

(a) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification, or

(b) cancel the notice.

(5) In considering an appeal against an improvement notice, the Court shall take into account the general duties of railway undertakings and others under sections 36 and 37.

(6) A railway undertaking or person who appeals against an improvement notice shall at the same time notify the Commission of the appeal and the grounds for appeal and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

(7) Where an appeal against an improvement notice is taken, the notice shall take effect on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

(8) Where no appeal is taken against an improvement notice, the notice shall take effect on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

(9) An inspector may withdraw an improvement notice at any time before the date specified in it under subsection (1)(d) and he or she may extend or further extend that date at any time when an appeal against the notice is not pending.

(10) A person who fails to comply with an improvement notice shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €300,000.

Prohibition notice.

78. —(1) Where an inspector is of the opinion that an activity being or likely to be carried on by or under the control or on behalf of—

(a) a railway undertaking and the activity involves, or is likely to involve, an immediate and substantial risk to the safety of persons, or

(b) any other person on or near a railway and where the activity poses, or is likely to pose, an immediate and substantial danger to the safety of persons involved in the operation of the railway or being carried on the railway,

or where a railway undertaking or person fails to comply with a requirement of this Act, the inspector may serve on that railway undertaking or person a notice (“prohibition notice”) signed by him or her.

(2) A prohibition notice shall—

(a) state that the inspector is of that opinion,

(b) specify the matters which in the inspector's opinion give or, as the case may be, are likely to give rise to the said risk,

(c) where, in the opinion of the inspector, the matter involves or, as the case may be, will involve a contravention of any provision of this Act, specify the provision or provisions as to which the inspector is of that opinion, and give particulars of the reasons why he or she is of that opinion, and

(d) direct that the activities to which the notice relates shall be carried on neither by nor under the control of the railway undertaking or other person on which the notice is served nor by nor under the control of any other person unless the matters specified in the notice in pursuance of paragraphs (b) or (c) have been remedied.

(3) A prohibition notice shall take effect—

(a) if the notice so declares, immediately the notice is received by the railway undertaking or person on which it is served, and

(b) in any other case—

(i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later, or

(ii) in case such an appeal is taken, on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

(4) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (3)(a) shall not have the effect of suspending the operation of the notice:

Provided, however, that the appellant may apply to the Court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the Court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

(5) (a) A railway undertaking or other person who is aggrieved by a prohibition notice may, within the period of 7 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the judge may—

(i) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification; or

(ii) cancel the notice.

(b) Where on the hearing of an appeal under this section a prohibition notice is confirmed, notwithstanding subsection (3) the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case he or she considers appropriate.

(6) In considering an appeal against a prohibition notice, the Court shall take into account the general duties of railway undertakings and others under sections 36 and 37.

(7) A railway undertaking or person who appeals against a prohibition notice or who applies for a direction suspending the application of the notice shall at the same time notify the Commission of the appeal or the application and the grounds for the appeal or the application and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

(8) An inspector may withdraw a prohibition notice.

(9) (a) Where a prohibition notice has been served and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.

(b) An application to the High Court for an order under paragraph (a) shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under paragraph (a) is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(10) On the application of the railway undertaking or other person concerned, an inspector shall confirm in writing if the circumstances giving rise to a prohibition notice no longer prevail or have been remedied to his or her satisfaction and if he or she so confirms, the notice shall no longer have effect.

(11) The Commission shall, unless in its opinion it is not appropriate in a particular instance to do so, make public details of a prohibition notice, including the name of the person to whom the notice is addressed and the situation giving rise to the notice.

(12) A person who fails to comply with a prohibition notice is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months, or to both, or

(b) on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 2 years, or to both.

Application to High Court by Commission.

79. —(1) Where the Commission considers that the risk to the safety of persons is so serious that the operations of a railway or of particular railway infrastructure or services, or activities carried out by, or omissions of, any other person which may pose a danger to persons operating or using the railway, should be restricted or should be immediately prohibited until specified measures have been taken to reduce the risk to a reasonable level, the Commission may apply, ex parte, to the High Court for an order restricting or prohibiting such operation.

(2) The Court may make such interim or interlocutory order as it considers appropriate.

(3) Any such order shall have effect notwithstanding the terms of any permission given under this Act or any other enactment for the operation of the railway or part thereof or, where the order refers to an other person, the carrying out of an activity by such person.

(4) On any application for the revocation or variation of an order made under subsection (1), the Commission shall be entitled to appear, be heard and adduce evidence.

Indemnification for actions in good faith.

80. —(1) Where the Commission is satisfied that a commissioner, an inspector, a member of staff of the Commission or a consultant or adviser or person engaged by the Commission under section 18 , has discharged his or her duties in the exercise of a function of the Commission under this Act in a bona fide manner, it shall indemnify such commissioner, inspector or member of staff of the Commission, or consultant or adviser, or other person engaged by the Commission, against all actions or claims however arising in respect of the discharge by him or her of his or her duties, including for the avoidance of doubt, the preparation and publication of an investigation report.

(2) In subsection (1) “report” includes a report referred to in section 60 (1), a draft report referred to in section 62 (1), an interim report under section 60 (4) and a draft interim report, and it also includes written observations on a draft report or draft interim report and comments on any such observations as referred to in section 62 .