Heritage Enforcement
General Prohibitions
The 2023 Act
- prohibits a person from knowingly, or recklessly, making a false or misleading statement when providing information to another person under a provision of the 2023 Act.
- prohibits a person from knowingly supplying equipment, machinery or vehicles for use in an offence under the 2023 Act.
- prohibits a person from interfering with or obstructing a number of specified bodies or persons (e.g. the Minister, a local authority, the Commissioners of Public Works etc.) in the performance of their respective functions under the 2023 Act.
There are various fines and/or terms of imprisonment for contraventions of the relevant provisions of the 2023 Act. A person will be guilty of an offence if contravening a provision of a regulation made under the 2023 Act that is stated to be a penal regulation.
A person will be guilty of an offence contravening a provision of a bye-law made under the 2023 Act that is stated to be a penal bye-law.
In the case of continuing offences there are additional penalties a person may face for continuing to be in contravention of the 2023 Act after already being convicted of an offence under the 2023 Act. Where an offence is committed by a body corporate and it is proved that the offence was committed with the consent of a person who was a director, manager or other officer of the body corporate, that person, as well as the body corporate, shall be guilty of the offence.
For the purposes of a prosecution of the offence, where unauthorised works are carried out to a monument or a wreck to which general or special protection applies, and it is reasonable to conclude that the person carrying out the works knew or suspected that they were being carried out to such a monument or wreck, that person will be deemed to have so known or suspected.
This will not apply if a court or jury is satisfied that there is reasonable doubt as to whether the person had so known or suspected – unless the monument or wreck were the subject of a specific notice (see the register action provision) or an enforcement notice (see the register action provision0) given to that person.
Defences
There is a defence against a specified offence (e.g. the contravention of a bye-law) where a fixed payment notice has already been paid in respect of that offence.
There is a defence to the carrying out of an act that requires a licence if done without a licence but for the sole purpose of protecting or recording elements of historic heritage in immediate danger of destruction. To avail of this defence, a number of specified criteria must be met, e.g. a report must be made to the Minister within 72 hours of such an act taking place.
There is a defence for a person charged with an offence under the 2023 Act if the act constituting the offence was the subject of a licence or similar authorisation granted or issued to a person in relation to whom the person charged was acting as servant or agent to the licence. The act that is alleged to constitute the offence must have been carried out under and in accordance with such licence or similar authorisation.
There is a defence in relation to failing to report the finding of a prescribed monument (see section 13). The person charged must show that a reasonable person would not have been aware that the prescribed monument concerned was such a monument.
There is a defence in relation to the unauthorised carrying out of works to a monument to which general protection applies.. The person charged must show that a reasonable person would not have been aware that the monument was a monument to which general protection applies. This defence will not apply to a registered monument or a wreck at least 100 years old.
There is a defence in relation to reporting the finding of an archaeological object (see section 101). The person charged must to show that a reasonable person would not have been aware that the archaeological object concerned was such an object.
General Powers
There are general powers of officers, servants and agents of relevant authorities and the 2023 Act grants them the power to enter on and go across land (including dwellings), to carry out works such as surveys or excavations, and to bring equipment and secure any site or area. It also requires a person encountered to give assistance as is reasonable in the circumstances or provide information about historic heritage as may reasonably be sought.
A private dwelling will not be entered without the consent of the occupier unless a warrant is obtained from the District Court. An officer, agent or servant of a he Minister or a local authority has the ownership or guardianship of that monument (a relevant authority) who enters land in private ownership which is not open to the public shall produce to anyone who may request it identification showing that he or she is such an officer, agent or servant.
The Minister may inspect a relevant thing of relevant interest, a site where such a relevant thing may be situated, a site where a licensable activity is being, or has been, carried out, or any other site that the Minister reasonably believes ought to be inspected for the purposes relating to the protection of historic heritage.
The Board may inspect any site where an archaeological object or historic object has been found or is situated, or that the Board believes such an object may have been found or is situated.
Enforcement Notices
The 2023 Act sets High Court and Circuit Court jurisdictions under Chapter 6 by linking each Court to the offences referred to.
There is provision for the issuing of enforcement notices in order to assist in the protection of monuments and archaeological heritage through effective measures to deal with contraventions of relevant provisions.
The Minister or a local authority which has the ownership or guardianship of that monument (a relevant authority), if of the opinion that a person has contravened a relevant provision under the 2023 Act, may give that person a written notice, accompanied by a copy of Chapter 6 and specifying the contravened provision and the reasons for the relevant authority’s opinion.
The notice will direct a person to take steps to remedy the contravention and will specify a reasonable period within which such steps are to be taken. Examples of steps include a requirement to restore a monument, archaeological object or wreck to its condition prior to the commencement of the contravention, or to carry out of repair works (possibly under the supervision and control of a relevant authority).
Where a person fails to take the steps specified in an enforcement notice, the relevant authority may apply to a relevant court for an order requiring the person to take those steps. A relevant authority may cancel an enforcement notice by notice in writing given to the person concerned.
A person to whom an enforcement notice has been given to apply to the relevant court for the cancellation of any direction specified in the notice. This must be done within 30 days of receiving the notice. If a relevant authority has given an enforcement notice to a person and is of the opinion that due to the nature or gravity of the possible contravention to which the notice relates, the person is required to do, or to cease, an act. The relevant authority may then apply to the court for an order directing the person to do, or to cease, such an act. The burden of proof in relation to all matters arising during the hearing of proceedings is on the balance of probabilities.
An action taken under Chapter 6 will not be construed to prejudice the generality of any action that may be taken under any other Chapter of Part 10. An action may be taken under this Chapter in relation to a person or thing concurrently with (or before or after) an action taken under another Chapter of this Part in relation to the same person or thing.
The rules of court (i.e. the procedures to be followed when bringing proceedings before the courts) may make provision for the expedition of the hearing of proceeding.
Arrest, search and seizure powers
The powers of any person under Chapter 7 are in addition to, and not in substitution for, powers arising under the Criminal Law Act 1997 or any other enactment.
There are powers of arrest, search and seizure of relevant bodies. The 2023 Act permits a member of a relevant body (e.g. An Garda Síochána) to arrest a person committing, or on suspicion of having committed, an offence under the 2023 Act. It permits the searching of land, premises, vehicles etc. for investigating possible offences under the 2023 Act, and allows for the seizure of anything found in the course of such a search. A private dwelling shall not be entered under this section without the consent of the occupier unless a warrant has been obtained from the District Court.
There are additional powers for members of relevant bodies, such as requesting a person to render assistance as may be reasonable in the circumstances, or to provide their name and address.
Evidentiary and procedural matters
The 2023 Act provides for inferences, evidentiary burdens and onuses of proof arising in certain circumstances. For example, in proceedings for a given offence under the 2023 Act the burden of showing an authorisation or licence was granted shall lie with the defendant.
In proceedings, a certificate signed by the Minister (or an officer authorised by the Minister) containing a statement specified in the Act shall, without proof of the signature or proof that the person was the Minister (or an authorised person), be evidence of the matters the subject of the relevant statement, unless the contrary is shown.
The 2023 Act provides for vicarious liability. Anything done by a person in the course of his or her employment shall, in any proceedings brought under the 2023 Act, be treated as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. With certain exceptions, it shall be a defence for an employer to prove that they took such steps as were practicable to prevent the employee from doing such an act.
Proceedings for an offence under the 2023 Act, committed in an area consisting of part of the sea or the sea bed, may be taken as having been committed in any site in the State. An offence committed in an area consisting of land covered by water, which is situated in two or more District Court districts, may be taken as having been committed in any of those districts.
An offence under the 2023 Act may be prosecuted summarily by the Minister, the Board of the National Museum of Ireland, or a local authority (depending on the offence). Summary proceedings may be instituted within different timeframes provided that are not commenced over two years after the date on which the offence concerned was committed.
The court shall, unless satisfied there are special reasons for not doing so, order a person convicted of an offence, or who is the subject of an enforcement order (see the register action provision4) to pay the Minister, the Commissioners, the Board, etc. the costs and expenses of the action, measured by the court. The Act sets out circumstances wherein a relevant body may recover amounts due by a person as a simple contract debt in any court of competent jurisdiction.
Codes of Practice
The Minister may publish, amend, or revoke codes of practice for setting out the manner in which he or she proposes to perform any function conferred upon him or her under a provision of the 2023 Act, or to provide practical guidance to persons to comply with a provision of the 2023 Act.
Before publishing a code of practice, the Minister must consult with appropriate persons, request and consider any representations, and make any modifications considered necessary. Published codes are to be notified in Iris Oifigiúil and copies are to be made available on the Department’s website. The Act provides for the admissibility of codes of practice in any proceedings before a court or tribunal, or in any other proceedings concerning the provision of the 2023 Act to which the code relates.
A relevant authority may direct an officer, servant or agent of that authority to take items, such as an archaeological or historic object, into his or her possession under certain circumstances (e.g. an ownership dispute). The relevant authority which has given the direction shall, as soon as is practicable after the dispute has been settled, cause the item to be given to its owner or the person with the right to its possession as determined by that settlement. The Minister may request information from the occupier of any land regarding the title to the land or of particulars of the estate etc.
Passing Title obtained through dishonesty
The 2023 Act ensures that, notwithstanding certain rules of law, fraudulent or dishonest dealing in archaeological objects, historic objects or removed elements of monuments cannot result in persons obtaining good title to such material.