(9)The Investigation Unit may pay any reasonable expenses incurred by a person appointed under subsection (8) and these expenses shall form part of the expenses of the Commission.
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(10)Any record gathered by a person appointed under subsection (4) shall be and remain a record of the Investigation Unit and a person appointed under this section shall not publish or publicise, or use for any other purpose, such records except with the prior consent in writing of the Investigation Unit.
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(11)A person appointed under subsection (4) shall, for the purposes of the investigation and for the period of his or her appointment, have the powers of an inspector.
\n
(12)The Investigation Unit shall, as soon as practicable, send a copy of a report into a railway incident involving an international service, published in accordance with section 60 , to the relevant competent authority in the other state.
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(13)Where, during the course of its investigation, the Investigation Unit becomes aware of any implications for railway safety which, in its opinion, warrant consideration by a railway undertaking or other person, in advance of the publication of the report of its investigation, the Investigation Unit may make such interim recommendation as it considers to be warranted and feasible for the avoidance of railway incidents or otherwise for the improvement of railway safety. In section 63 a reference to a recommendation includes a reference to an interim recommendation under this subsection.
\n
(14)The Investigation Unit shall, on the commencement of an investigation under this section, notify the railway undertaking concerned and such other persons as it may deem appropriate of such commencement.
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(15)The Investigation Unit may, before commencing an investigation under this section, make enquiries to determine whether an investigation is warranted.
\n
(16)A railway undertaking shall, as soon as practicable following notification under subsection (14), provide to the Investigation Unit details of all records held by it, and all information known to it, that may be relevant to an investigation under this section and shall immediately thereafter notify the Investigation Unit of any further relevant records which come into its possession and any further relevant information that becomes known to it.
\n
(17)An answer, statement or declaration given to an inspector as part of an investigation under this section shall not be admissible as evidence in civil or criminal proceedings.
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Re-opening of investigation by Investigation Unit.
\n
59.—(1) Where the Investigation Unit has carried out an investigation under section 58 and it is satisfied that there is new evidence available which could be likely to materially alter the findings of the investigation and that the purpose of the investigation would be served by re-opening it, the Investigation Unit may re-open the investigation.
\n
(2)This Part applies to an investigation re-opened under this section in the same way as it applies to an investigation under section 58 .
\n
Publication of report of investigations.
\n
60.—(1) The Investigation Unit shall publish a report of an investigation (“investigation report ”) undertaken by it under section 58 and shall immediately transmit a copy to the Minister.
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(2)The Investigation Unit shall endeavour to publish an investigation report not later than 9 months after the commencement of an investigation to which it relates.
\n
(3)Where it appears to the Investigation Unit that it would not be possible or appropriate in the circumstances to publish the report within the period referred to in subsection (2), it shall, within that period, give to the Minister its reasons as to why the report cannot be published within that period and indicate the estimated period within which it expects the investigation report will be published.
\n
(4)The Investigation Unit may publish an interim report of an investigation.
\n
(5)Sections 61 and 62 shall apply to an interim report in the same way as they apply to a report under subsection (1).
\n
Contents of report.
\n
61.—(1) All relevant findings of an inspector during an investigation under section 58 shall be included in the investigation report.
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(2)Having regard to section 58 , if the inspector succeeds in establishing the cause or causes, or probable cause or causes, of a railway incident, the report shall indicate it or them.
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(3)In the light of the findings of the inspector and having regard to section 58 , the report shall outline any recommendations the Investigation Unit considers to be warranted and feasible for the avoidance of railway incidents or otherwise for the improvement of railway safety.
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(4)Although it shall not be the purpose of the report to attribute blame or liability, section 58 shall not prevent the reporting of relevant findings of an inspector in accordance with subsection (1), indicating the cause or causes or probable cause or causes of the incident in accordance with subsection (2) or the making of recommendations in accordance with subsection (3), of this section.
\n
(5)For the avoidance of doubt, copyright in a published report or interim report remains with the Commission but the copyrighted material may be freely used for educational or safety-related purposes but not for commercial benefit.
\n
Preparation of draft report and observations of affected persons.
\n
62.—(1) Before publishing an investigation report or an interim report under section 60 the Investigation Unit shall send a draft of the report or sections of the draft report to any person who, in its opinion, is likely to be adversely affected by the publication of the report or section.
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(2)Where a person referred to in subsection (1) is deceased, a draft of the report or sections of the draft report shall be sent by the Investigation Unit to the person who appears to the Investigation Unit to best represent the interests of the deceased person.
\n
(3)A person to whom the Investigation Unit sends a draft in accordance with subsection (1) or (2) may, within a period of 28 days commencing on the date on which the draft is sent to the person or such further period, not exceeding 28 days, as the Investigation Unit in its discretion thinks fit, submit to the Investigation Unit in writing his or her observations on the draft.
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(4)A person to whom the draft has been sent in accordance with subsection (1)or (2) may apply to the Investigation Unit for an extension, in accordance with subsection (3), of the period in which to submit his or her observations on the draft.
\n
(5)Observations submitted to the Investigation Unit in accordance with subsection (3) may, if the Investigation Unit considers it appropriate to do so, be included in an appendix to the published report unless the person submitting the observations requests in writing that the observations are not published.
\n
(6)Where observations are submitted to the Investigation Unit in accordance with subsection (3), the Investigation Unit may, at its discretion— (a) alter the draft before publication or decide not to do so, or (b) where a person agrees to publication of observations under subsection (5), include in the published report such comments on the observations as it sees fit.
\n
(7)A person to whom a draft has been sent in accordance with subsection (1) or (2) shall not disclose (other than by way of disclosure to his or her legal or technical advisors subject to an enforceable condition of confidentiality) to another person the draft or its contents except with the prior consent in writing of the Investigation Unit and subject to such conditions, if any, which may be specified by the Investigation Unit in such consent.
\n
(8)A person who contravenes subsection (7) is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.
\n
Recommendations of Investigation Unit.
\n
63.—(1) A recommendation under section 61
\n
(3)shall in no case create a presumption of blame or liability for a railway incident.
\n
(2)A public authority or other organisation or person or a railway undertaking, to whom a recommendation under section 61
\n
(3)is addressed shall, as soon as practicable after receiving it, furnish the Investigation Unit with a statement indicating the action taken or under consideration in response to such recommendations or the reasons why no action will be taken.
\n
(3)In this section, “public authority” means a Minister of the Government, the Council and any other body, including a local authority, in the State which, in the opinion of the Investigation Unit, has or may have functions in relation to a recommendation.
\n
Tribunal of inquiry.
\n
64.—(1) The Minister may, where he or she considers it necessary, with the consent of the Minister for Finance and after consultation with the Commission and the Investigation Unit, direct that a tribunal of inquiry be held into a railway incident.
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(2)The following provisions shall have effect in relation to a tribunal— (a) the Minister shall appoint a competent person or persons to hold the inquiry and may appoint any person or persons possessing legal, railway or special knowledge, including a commissioner or former commissioner, the Chief Investigator or an inspector, to act as an assessor to assist the inquiry, (b) where the tribunal relates to an international service, the Minister may appoint a person or persons nominated by the relevant competent authority in the other state, to act as an assessor to assist the inquiry, (c) the tribunal shall hold the inquiry in such manner and under such conditions as it thinks appropriate, (d) the tribunal shall have for the purposes of the inquiry all the powers of a judge of the District Court when hearing a prosecution for an offence under this Act, and all the powers of an inspector under this Act, and in addition, power— (i) by summons signed by the tribunal, to require the attendance of such persons as it thinks fit to call before it and examine for the purposes of the inquiry, and to require answers or returns to the inquiries it thinks fit to make, and (ii) to administer an oath or affirmation 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.
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(3)In subsection (2)(a), “competent person” includes a serving or former member of the judiciary or any other person whom the Minister considers has the necessary experience or expertise but does not include a serving commissioner, Chief Investigator, or member of the staff of the Commission or Investigation Unit, any person who is or was a member of the staff of a railway undertaking involved in the incident, or any person who, in the opinion of the Minister, has an actual or potential conflict of interest.
\n
(4)If a person objects to a question asked of him or her as a witness at a tribunal on the grounds that the answer might tend to incriminate the person or make the person liable to a penalty and the person is informed of his or her obligation to answer the question, the person shall not refuse to answer the question but the answer given on that occasion shall not be admissible as evidence in criminal or other proceedings against the person other than proceedings against him or her in respect of the falsity of the answer or the failure to answer the question.
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(5)Persons attending as witnesses before a tribunal shall be allowed such expenses as would be allowed to witnesses attending before a court of record and, in case of a dispute as to the amount to be allowed, the dispute shall be referred by the tribunal to the Taxing Master of the High Court who, on request signed by the tribunal, shall ascertain and certify the proper amount of the expenses.
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(6)A tribunal shall make a report to the Minister recording all relevant findings of the tribunal, indicating the cause or causes or probable cause or causes of the railway incident and any recommendations which the tribunal considers to be warranted and feasible for the avoidance of incidents or otherwise for the improvement of railway safety and adding any observations which it thinks fit to make.
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(7)The Minister shall publish the report of a tribunal under this section.
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(8)The Minister shall pay to the person or persons conducting an inquiry under this section such fees and expenses as the Minister may, with the consent of the Minister for Finance, determine.
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(9)The Minister shall, subject to the consent of the Minister for Finance, defray the other costs, if any, of an inquiry and report under this section.
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(10)A tribunal may, at its discretion, decide whether or not to award costs in connection with an inquiry under this section and where it decides that costs shall be awarded, those costs may be awarded in such amounts and in respect of such matters as the tribunal, in its discretion, thinks fit.
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(11)The Minister shall give notice of his or her intention to establish a tribunal of inquiry under this section by a notice published in Iris Oifigiúil and at least one daily newspaper published and circulating in the State, setting out the terms of reference of the inquiry.
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(12)The Minister may, if he or she considers it necessary for the more effective conduct of inquiries, make regulations governing the holding of inquiries and without prejudice to the generality of this section, such regulations may provide for— (a) the location at which an inquiry may be held, (b) the manner in which facts may be proved at an inquiry, and (c) the persons allowed to appear and the notices to be given to persons affected.
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(13)A person who— (a) without reasonable excuse, fails to comply with a summons of a tribunal, (b) being in attendance as a witness at a tribunal, refuses— (i) to take any oath or make an affirmation, (ii) to sign any declaration as to the truth of any statement made by him or her, or (iii) refuses to answer any question to which the tribunal may require an answer, when required by the tribunal to do so, or (c) obstructs or hinders a tribunal, is guilty of an offence and 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.
\n
(14)In this section, “tribunal” means a tribunal of inquiry under this section.
\n
Suspension of investigation by Investigation Unit where inquiry directed.
\n
65.—(1) The Minister may direct that an inquiry be held under section 64 notwithstanding that the railway incident into which the inquiry is to be held is or was the subject of an investigation by the Investigation Unit under section 58 .
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(2)Where the Minister directs that an inquiry be held under section 64 , no investigation by the Investigation Unit into the same matter shall be commenced or continue.
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Re-opening of inquiry.
\n
66.—(1) The Minister may, after consultation with the Investigation Unit, direct that a completed inquiry be re-opened if satisfied that there is new evidence available which could materially alter the findings of the inquiry and that the purpose of the inquiry would be served by re-opening it.
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(2)This Part applies to a re-opened inquiry in the same way as it applies to an inquiry.
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Inquest in case of railway incident.
\n
67.—(1) Where a coroner (within the meaning of the Coroners Act 1962 ) holds or is about to hold an inquest on the body of any person whose death may have been caused by a railway incident, this section has effect.
\n
(2)The coroner shall notify the Commission of the time and place of the holding of an inquest not less than 72 hours before the time of holding the inquest.
\n
(3)The coroner may in writing request the attendance of an inspector to assist in the holding of an inquest and on receipt of such a request the Commission may appoint an inspector or a person engaged under section 18 to assist in the holding of such inquest.
\n
(4)Where an inspector does not assist a coroner under subsection (3) at an inquest relevant to this section and where evidence is given as to any neglect having caused or contributed to the railway incident or as to any defect in the operation of a railway appearing to a coroner or jury to require a remedy, the coroner shall send to the Commission notice in writing of the evidence of the neglect or defect.
\n
(5)In addition to a notice specified in subsection (4), every coroner shall furnish to the Commission a written return in relation to an inquest to which this section applies and this return shall be in the format specified by the Commission, after consultation with the Coroners Society of Ireland.
\n
Transitional provision (opening of railways).
\n
68.— Sections 4 , 5 and 6 of the Railway Regulation Act 1842 , repealed by section 5 of this Act, continue to apply to any railway or portion of railway in respect of which a notice of its intended opening is given under section 4 of that Act but which is not opened immediately before the repeal of those sections.
\n
PART 6
\n
Regulations and Review of Legislation Regulations.
\n
69.—(1) The Commission, with the consent of the Minister and after consultation with the Council, railway undertakings, organisations which represent staff of railway undertakings and such other persons as in the opinion of the Commission may be relevant, may make regulations in relation to all or any of the following— (a) standards and specifications for railway infrastructure and rolling stock, (b) additional matters to be included in a safety management system or a safety case for the purposes of section 39 , (c) requirements or restrictions relating to the management of passengers and other persons on railway property, including in relation to persons standing in trains, the placing of luggage in trains, and emergency evacuation from trains, (d) levels of training, competencies and qualifications of staff of railway undertakings, including disability awareness training and requirements on railway undertakings to facilitate staff holding positions before the entry into operation of such regulations in achieving any required level of training, competency or qualification, (e) requirements relating to interfaces between railway undertakings, (f) requirements relating to interfaces between railway infrastructure or trains and any other vehicle or road, (g) requirements relating to the reporting by railway undertakings of railway incidents, including the form of reporting and the classification of railway incidents to be reported, (h) procedures for the acceptance of new works (within the meaning of section 42
\n
(15)) and new rolling stock (within the meaning of section 43
\n
(14)), (i) requirements for the maintenance by a railway undertaking of records, and (j) standards, specifications and procedures to be used by railway undertakings to safely facilitate the special requirements of mobility-impaired persons.
\n
(2)Regulations made by the Commission under subsection (1) shall not be for the purpose of giving effect to an act adopted by an institution of the European Communities.
\n
(3)The Minister may make regulations for the purpose of giving effect to an act adopted by an institution of the European Communities in relation to railway safety.
\n
(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 the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
\n
Regulations for protection of railway incident sites.
\n
70.—The Commission may, with the consent of the Chief Investigator, and after consultation with the Minister, the Minister for the Environment, Heritage and Local Government, the Garda Síochána, the Council, railway undertakings and such other persons as in the opinion of the Commission may be relevant, make regulations relating to the protection of the sites of railway incidents and the regulations may, without prejudice to the generality of the foregoing, include provisions in relation to any or all of the following matters— (a) procedures for the collection, recording and protection of evidence, (b) the protection of such sites, (c) the protection against unauthorised interference with such sites, and (d) prohibiting the unauthorised removal of anything from such sites.
\n
Offence.
\n
71.—A person who contravenes or fails to comply with any regulations made under this Part is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.
\n
Review of legislation by Commission.
\n
72.—(1) It shall be the duty of the Commission— (a) to keep under review the provisions of this Act, (b) to keep under review any other relevant statutory provisions that affect, or may affect, the carrying out of its functions under this Act, and (c) to submit from time to time, to the Minister, or such other Minister of the Government having responsibility for the other statutory provisions, such recommendations as it considers appropriate in relation to the said statutory provisions or for the making, modification or revocation of any instruments under those provisions.
\n
(2)Before submitting recommendations to the Minister or such other Minister of the Government, as the case may be, in accordance with subsection (1)(c), the Commission shall consult any Minister of the Government, the Council or other person that appears to the Commission to be appropriate in the circumstances or that the Minister, or other Minister of the Government as the case may be, so directs.
\n
(3)The Commission shall consider any proposals for legislative change concerning railway safety and related matters referred to it by the Minister or any other Minister of the Government responsible for any of the other statutory provisions.
\n
(4)Whenever the Minister, or such other Minister of the Government as the case may be, makes, modifies or revokes any instruments under the statutory provisions referred to in subsection (1), or publishes proposals for legislative change concerning railway safety and related matters, he or she shall, at the same time, cause copies of any recommendation of the Commission under subsection (1)(c) or arising from the Commission's consideration of proposals under subsection (3), to be laid before each House of the Oireachtas.
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PART 7
\n
Enforcement Inspectors.
\n
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.
\n
(2)Each commissioner shall, on his or her appointment, be deemed to be an inspector for the purposes of this Act.
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(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.
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(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
(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.
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(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.
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(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.
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(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.
\n
(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.
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(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.
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(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.
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(11)The Commission shall consult with railway undertakings in relation to procedural arrangements for entry by inspectors upon railway property.
\n
(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.
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(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.
\n
(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.
\n
(15)In this section, “railway property” means all land, buildings, railway infrastructure, rolling stock and vehicles under the control of a railway undertaking.
\n
Provision of records and other information.
\n
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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
Requirement to give name and address, obstruction, arrest, offence.
\n
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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
(7)In this section, a reference to an inspector includes a reference to a tribunal of inquiry under section 64 .
\n
Improvement plan.
\n
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.
\n
(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.
\n
(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.
\n
Improvement notice.
\n
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).
\n
(2)An improvement notice may include directions as to the measures to be taken to remedy the alleged contraventions set out in the notice.
\n
(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.
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(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.
\n
(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 .
\n
(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.
\n
(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.
\n
(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.
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(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.
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(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.
\n
Prohibition notice.
\n
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.
\n
(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.
\n
(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.
\n
(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:
\n
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.
\n
(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.
\n
(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 .
\n
(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.
\n
(8)An inspector may withdraw a prohibition notice.
\n
(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.
\n
(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.
\n
(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.
\n
(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.
\n
Application to High Court by Commission.
\n
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.
\n
(2)The Court may make such interim or interlocutory order as it considers appropriate.
\n
(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.
\n
(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.
\n
Indemnification for actions in good faith.
\n
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.
\n
(2)In subsection (1) “report” includes a report referred to in section 60
\n
(1), a draft report referred to in section 62
\n
(1), an interim report under section 60
\n
(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 .
\n
PART 8
\n
Railway Safety Advisory Council Appointed day.
\n
81.—The Minister shall by order appoint a day to be the appointed day for the purposes of this Part.
\n
Railway Safety Advisory Council.
\n
82.—(1) There shall be established, on the appointed day, a body to be known as, in the Irish language, An Chomhairle Sábháilteachta Iarnróid, or in the English language, the Railway Safety Advisory Council, and in this Act referred to as the “Council”, to perform the functions assigned to it under this Part.
\n
(2)The Council shall consist of 14 members.
\n
(3)Members of the Council shall comprise— (a) a chairperson who, in the opinion of the Minister, has appropriate experience and expertise, and is sufficiently independent from railway undertakings and from persons representing the staff of undertakings and from the Commission, (b) at least 4 persons representing railway undertakings, of which one will represent railway undertakings which in the opinion of the Minister are heritage railways, (c) at least 3 persons from organisations which represent staff of railway undertakings, (d) at least one person who in the opinion of the Minister represents the public interest, (e) at least one person representing a body established by or under statute involved in the regulation of worker safety or public safety, (f) at least one person from an organisation representing the interests of mobility-impaired persons, and (g) at least one person with particular expertise relevant to railway safety but not being a person from an organisation in paragraph (b) or (c) or from the Commission.
\n
(4)An organisation or person may, at its own initiative or at the request of the Minister, nominate a person to be a member of the Council, and the Minister in making an appointment under subsection (5), shall have regard, in so far as is practicable, to any nominations received by him or her under this subsection.
\n
(5)The Minister shall appoint persons to be members of the Council, including a person to be chairperson of the Council, and an appointment under this section shall be for such period not exceeding 3 years as may be specified by the Minister when appointing such persons, and shall be on such terms and conditions as may be determined by the Minister, with the consent of the Minister for Finance.
\n
(6)A member of the Council shall be paid, out of monies at the disposal of the Commission, such allowances for expenses as the Minister, with the consent of the Minister for Finance, may determine.
\n
(7)A member of the Council whose term of office expires by the effluxion of time shall be eligible for re-appointment.
\n
(8)The Minister, in appointing members of the Council shall ensure, in as far as is practicable, an equitable balance between men and women in any appointments.
\n
(9)The Commission shall provide all reasonable facilities and services as may be required by the Council for the carrying out of its functions.
\n
(10)The Council may act notwithstanding a vacancy or vacancies in its membership.
\n
(11)The Council may regulate, by standing orders or otherwise, its procedure and business.
\n
(12)The Minister shall fix the date, time and place of the first meeting of the Council and the members of the Council shall decide on the frequency of all further meetings, subject to the Council meeting at least once each year.
\n
(13)A member of the Council may resign from office by letter addressed to the Minister.
\n
(14)The Minister may remove from office a member of the Council in the following circumstances— (a) where, in the opinion of the Minister, he or she has become incapable through ill-health of effectively performing his or her duties, (b) for stated misbehaviour, (c) in the case of a person appointed to represent an organisation, a body or a class of persons under subsection (3), where the person is no longer such a representative, or (d) where his or her removal appears to the Minister to be necessary or desirable for the effective performance by the Council of its functions.
\n
(15)The Minister may, after consultation with the Council, make regulations on any matter which the Minister considers expedient for the purposes of this section.
\n
(16)A commissioner (or if membership is vacant, the deputy commissioner) may attend and be heard at meetings of the Council but may not vote on any matter being considered by the Council.
\n
Functions of Council.
\n
83.—(1) It shall be the general function of the Council to consider issues relevant to railway safety and to make recommendations, as appropriate, to the Commission or to the Minister.
\n
(2)Without prejudice to the generality of subsection (1), the Council may make recommendations— (a) to the Commission in relation to— (i) regulations, standards, guidelines and codes of practice that are in force in relation to railway safety, (ii) proposals for regulations, standards, guidelines or codes of practice in relation to railway safety submitted by the Commission to the Council for consideration, (iii) other matters relating to railway safety other than matters relating to industrial relations, and (iv) any other matters related to the functions of the Commission or which the Commission submits to the Council for consideration, (b) to the Minister in relation to— (i) railway safety policy, (ii) the adequacy of railway safety legislation which is in force, (iii) proposals for legislation or regulations in relation to railway safety submitted by the Minister to the Council for consideration, (iv) the assignment of specific functions relating to railway safety to the Commission, (v) the nature and mix of expertise, skills and experience that is desirable in a candidate for appointment as a commissioner, and (vi) any other matter which, in the opinion of the Council, is relevant to the effective performance by the Council or by the Commission of its functions or which the Minister submits to the Council for consideration.
\n
(3)The Commission or the Minister, as appropriate, shall consider the recommendations of the Council given under this section.
\n
(4)The Council may publish recommendations given under this section.
\n
(5)The Commission may consult the Council on any matter relating to railway safety or to the effective performance by the Commission of its functions.
\n
(6)The Minister may consult the Council on any matter arising in relation to his or her functions with respect to railway safety.
\n
(7)The Council shall be entitled to be informed at its meetings, by the commissioner or deputy member of the Commission who stands appointed to the Council or a person appointed by him or her for the purpose, about the work of the Commission but not in relation to the detail of particular safety cases, assessments, audits or investigations where a report has not been published.
\n
PART 9
\n
Intoxicants and Persons Working on Railway Infrastructure Commencement (Part 9).
\n
84.—This Part comes into operation on such day or days as the Minister may appoint by order either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
\n
Interpretation (Part 9).
\n
85.—In this Part— “analysis” includes any operation used in determining the presence (if any) of a drug in a specimen of blood or urine, and cognate words shall be construed accordingly; “analysis body” means a person who, in the opinion of a railway undertaking concerned and the Commission, is competent to carry out an analysis of a sample and is independent of the railway undertaking concerned and of any other railway undertaking; “authorised person” means a person appointed to be an authorised person under section 95 ; “code of conduct” means the code of conduct drawn up by a railway undertaking under section 88
\n
(1)(a) or amended under section 88
\n
(10)and accepted by the Commission under section 88
\n
(5); “drug” includes all drugs whether legally obtained or otherwise; “railway undertaking” means a railway undertaking to which this Part applies; “safety critical task” has the meaning assigned to it in
\n
Part 10
\n
; “safety critical worker” has the meaning assigned to it in
\n
Part 10
\n
; “sample” means the provision of a specimen of blood or urine in accordance with sampling procedures; “sampling procedures” means procedures established under section 88
\n
(1)(b) or amended under section 88
\n
(10)and accepted by the Commission under section 88
\n
(5).
\n
Application (Part 9).
\n
86.—(1) This Part applies to a railway undertaking (other than a heritage railway) which operates railway infrastructure or operates trains on a railway infrastructure where such infrastructure is used, or intended to be used, wholly or partly for the carriage of members of the public or freight.
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(2)This Part does not apply to a railway undertaking which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used or intended to be used solely for industrial use.
\n
(3)This Part applies to a safety critical worker.
\n
Duties of safety critical workers and railway undertakings.
\n
87.—(1) It is the duty of a safety critical worker and is deemed to be a term of his or her contract of employment or contract of services (whether made before or after the passing of this Act) with a railway undertaking or with a person who has a contract of services with a railway undertaking— (a) not to perform a safety critical task while being unfit, (b) not to make himself or herself available to perform a safety critical task by attending at work while being unfit, (c) not to do anything that is an offence under section 97 , and (d) to comply with the railway undertaking's code of conduct and sampling procedures.
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(2)It is the duty of a railway undertaking to take reasonable steps to ensure that a safety critical worker complies with his or her duties under subsection (1).
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(3)In this section, “unfit” has the meaning assigned to it in section 97 .
\n
Codes of conduct, etc., in relation to intoxicants.
\n
88.—(1) Subject to subsection (2), in order to fulfil its duty under section 87
\n
(2), a railway undertaking shall, in consultation with organisations which represent the staff of its undertaking— (a) draw up a code of conduct for safety critical workers to be observed by each of them while at work in relation to intoxicants, (b) establish sampling procedures in relation to the provision of samples under section 89 by safety critical workers while at work or following a railway incident, and (c) provide counselling and other assistance (in this Part referred to as “support services”) to safety critical workers on the request of such workers or in respect of such persons who fail to comply with section 87
\n
(1)in order to assist those persons to comply with that subsection in the future.
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(2)Without prejudice to the generality of subsection (1)(a), a code of conduct shall include provisions— (a) providing for the course of action (including dismissal, termination of contract, suspension, demotion, prohibition on working at the undertaking or performing specified safety critical tasks or mandatory attendance at counselling) to be taken where a safety critical worker— (i) has failed to comply with his or her duties under section 87
\n
(1), (ii) has failed, without reasonable excuse, to provide a sample under section 89 or comply with sampling procedures under this section, or (iii) is convicted of an offence under
\n
Chapter 2
\n
of
\n
Part 10
\n
, and (b) providing for procedures relating to appeals under section 90 .
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(3)Without prejudice to the generality of subsection (1)(b), sampling procedures shall provide for— (a) matters relating to the circumstances in which sampling may be undertaken under section 89 , (b) the caution to be given to a safety critical worker who is required under section 89 to provide a sample, as to the consequences of failing, without reasonable excuse, to give such sample, (c) the means of sampling, (d) the location where a sample may be taken, (e) analysis of a sample by an analysis body, (f) privacy in relation to sampling, (g) procedures for the protection of the integrity of a sample, (h) division of any specimen of blood and urine into 2 parts and provision of one part to a person being sampled, (i) a certificate to prove the results of the analysis of a sample and presumption as to the accuracy of the results of the sample so certified, and (j) grievance procedures in relation to sampling.
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(4)A railway undertaking shall, within 6 months of the commencement of this Part or such further period, at the discretion of the Commission, being not more than 12 months from such commencement, submit to the Commission for its acceptance drafts of a code of conduct, sampling procedures and details of support services to be provided.
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(5)The Commission shall issue a notification in writing accepting a code of conduct, sampling procedures or details of support services submitted under subsection (4) where the Commission is satisfied that— (a) it is sufficient to enable the railway undertaking to discharge its duty under section 87
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(2), and (b) the undertaking has adequately consulted with organisations which represent the staff of its undertaking.
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(6)Where the Commission is not satisfied with any draft code of conduct, sampling procedures or details of support services submitted to it under subsection (4), the Commission shall notify in writing the railway undertaking of its dissatisfaction and the reasons for the dissatisfaction, and the railway undertaking, on receipt of a notification under this subsection shall, before re-submitting to the Commission, within such period as may be specified to it by the Commission, the code, sampling procedures or details, take the action necessary to address the reasons stated in the notification and shall consult with organisations which represent the staff of its undertaking in relation to the said matters.
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(7)On service of a notification from the Commission under subsection (6), a railway undertaking shall, within 6 months of the date of the notification, ensure that the code of conduct and sampling procedures are adopted and implemented and support services are provided.
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(8)A railway undertaking shall take reasonable steps to ensure that the code of conduct, sampling procedures and details of support services provided by it and an abstract of this Part are displayed in a prominent place in the undertaking and brought to the attention of safety critical workers.
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(9)A railway undertaking shall give a copy of the code of conduct, sampling procedures or details of support services provided by it to a safety critical worker upon the request of that worker.
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(10)A railway undertaking may amend a code of conduct drawn up, sampling procedures or details of support services provided by it, in consultation with organisations which represent the staff of its undertaking, and subsections (4) to (9) shall apply to any such amendment or alteration with such modifications as are necessary.
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(11)A railway undertaking to which this Part and section 95 apply, shall, within 3 months of the end of each year, make a report to the Commission on the implementation by it of the measures provided for in this Part and
\n
Part 10
\n
. The report shall contain such particulars as the Commission may direct.
\n
(12)The Commission shall, within 2 months of receipt of a report under subsection (11), publish details of the report, but without giving information of a personal, confidential or prejudicial nature.
\n
(13)The Commission shall, before publishing details of a report in accordance with subsection (12), lay a copy of those details before each House of the Oireachtas.
\n
Sampling for drugs.
\n
89.—(1) An authorised person may require a safety critical worker to provide a sample of blood or urine, in accordance with the sampling procedures of the railway undertaking concerned— (a) where he or she is of the opinion, or on the request of an inspector who is of the opinion, that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, has a drug in his or her body to such an extent that he or she is in breach of his or her duty under section 87
\n
(1), (b) where a railway incident occurs and he or she is of the opinion, or on the request of an inspector who is of the opinion, that— (i) the safety critical worker concerned was performing or had performed a safety critical task on the railway infrastructure, or on the train, involved with the incident, or (ii) the safety critical worker concerned failed to perform a safety critical task expected of him or her, on the railway infrastructure, or on a train, involved with the incident, or (c) for the safe operation of the undertaking, at random and in circumstances that are reasonable, where that worker is performing a safety critical task or has made himself or herself available to perform a safety critical task by attending at work.
\n
(2)Only a medical practitioner may take a specimen of blood or be provided with a specimen of urine.
\n
(3)It is the duty of a safety critical worker if a requirement to provide a sample is made of him or her under subsection (1), unless he or she has reasonable excuse, to provide the sample.
\n
(4)While a safety critical worker is at a hospital as a patient, he or she shall not be required to provide a sample unless the medical practitioner in immediate charge of his or her case has been notified by an authorised person of the proposal to make the requirement and— (a) if the requirement is then made, it shall be for the provision of a sample at the hospital, but (b) if the medical practitioner objects, on the ground that the requirement would be prejudicial to the proper care and treatment of the patient, the requirement shall not be made.
\n
(5)A sample provided to an authorised person under this section shall be sent by him or her to an analysis body for the purposes of analysing the sample for drugs and the analysis body shall issue a certificate to the authorised person in relation to the results of the analysis.
\n
(6)An analysis body may charge the railway undertaking concerned a fee in respect of any analysis made and certificate issued by it under subsection (5).
\n
(7)The results of any analysis under subsection (5) in respect of a sample taken under this section shall, at the request of the Investigation Unit, be given to it by the railway undertaking for whom it was made for the purposes of an investigation by the Unit under section 58 .
\n
Disciplinary measures.
\n
90.—(1) Where an authorised person makes a complaint to the management of the railway undertaking which appointed him or her that— (a) a safety critical worker has been convicted of an offence under Chapter 2 of Part 10, or (b) in his or her opinion, a safety critical worker has— (i) failed to comply with his or her duty under section 87
\n
(1), (ii) failed without reasonable excuse to comply with his or her duty to provide a sample under section 89 , or (iii) contravened subsection (6), the railway undertaking concerned shall— (c) in the case of a complaint under paragraph (a), satisfy itself as to the fact of that person's conviction, and if the code of conduct so provides, inquire at an oral disciplinary hearing into the circumstances of that conviction, and (d) in the case of a complaint under paragraph (b), satisfy itself as to the facts and circumstances of the matter at an oral disciplinary hearing.
\n
(2)Where, in accordance with subsection (1)(c) or (d), a railway undertaking is satisfied that a safety critical worker— (a) has been convicted of an offence under Chapter 2 of Part 10, or (b) has— (i) failed to comply with his or her duty under section 87
\n
(1), (ii) failed without reasonable excuse, to comply with his or her duty to provide a sample under section 89 , or (iii) contravened subsection (6), it shall decide the course of action to be taken (including dismissal, termination of contract, suspension, demotion, prohibition on working at the undertaking or working at safety critical tasks, or mandatory attendance at counselling) in accordance with the code of conduct.
\n
(3)A safety critical worker who is the subject of a disciplinary hearing under this section may represent himself or herself or be-represented by another person at the hearing.
\n
(4)Where a railway undertaking imposes any sanction against a safety critical worker as a result of a hearing under this section, it shall afford the worker an opportunity, at his or her choice, to appeal to it or to such other person or persons nominated by the undertaking against the sanction.
\n
(5)A person nominated under subsection (4) shall be independent of the undertaking and shall not be a member of its staff or connected to it or be a member of the staff of or connected to another railway undertaking.
\n
(6)A safety critical worker shall not take or attempt to take any action with the intention of frustrating disciplinary measures under this section.
\n
Proof of certificate of analysis.
\n
91.—In any disciplinary hearing under section 90 or in any proceedings, a certificate, issued under section 89
\n
(5), purporting to be signed by a person employed or engaged in the analysis of samples provided under section 89
\n
(1)at an analysis body, stating the capacity in which the person is so employed or engaged and stating any one or more of the following, namely— (a) that the person received the sample sent under section 89
\n
(5)to the analysis body, (b) that, for such period as is specified in the certificate, the person had in his or her custody the sample so sent, (c) that the person gave to such other person as is specified in the certificate the sample so sent, (d) that the person carried out the analysis of the sample, and (e) the results of the analysis, shall, unless the contrary is shown be evidence of the matters stated in the certificate.
\n
PART 10
\n
Offences by Persons Working on Railway Infrastructure
\n
Chapter 1
\n
Preliminary Commencement, (Part 10).
\n
92.—This Part comes into operation on such day or days as the Minister may appoint by order either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
\n
Definitions, (Part 10).
\n
93.—(1) In this Part— “analysis” includes any operation used in determining the concentration of alcohol in a specimen of breath, blood or urine, and any operation used in determining the presence (if any) of a drug or drugs in a specimen of blood or urine, and cognate words shall be construed accordingly; “Bureau” means Medical Bureau of Road Safety; “designated” means designated by a member of the Garda Síochána; “prescribed” means prescribed in regulations made by the Minister; “safety critical task” means a task specified in paragraph (i), (ii) or (iii) when performed in the course of the operation of a railway undertaking, and— (a) in the course of a person's employment with the undertaking, (b) under a contract of services with the undertaking, (c) in the course of a person's employment with a person who has a contract of services with the undertaking, or (d) voluntarily or otherwise, namely— (i) driving a train, or in any other way controlling or affecting the movement of a train, (ii) controlling, affecting or managing, the movement of persons on a train, on a platform, across a level crossing, or, the boarding of, or alighting from, a train of persons, or (iii) working in a maintenance capacity (as defined in subsection (2)) or as a supervisor of, or look-out for, persons working in such capacity; “safety critical worker” means a person who performs a safety critical task.
\n
(2)For the purposes of this Part and
\n
Part 9
\n
, a person works in the course of the operation of a railway undertaking in a maintenance capacity, if his or her work in the operation involves installation, maintenance, repair, alteration or inspection of, railway infrastructure or trains, or involves coupling or uncoupling trains or performing a pre-departure examination of trains.
\n
Power of Garda Síochána to enter railway property and to stop train.
\n
94.—(1) A member of the Garda Síochána may enter railway property for the purposes of enforcing this Part.
\n
(2)A member of the Garda Síochána may request a railway undertaking to stop a train at a convenient and safe location for the purposes of this Part.
\n
(3)In exercising a power under subsection (2), a member of the Garda Síochána shall take all reasonable steps to avoid disruption to the operations of the railway undertaking concerned.
\n
Application and authorised persons.
\n
95.—(1) This section applies to a railway undertaking (other than a heritage railway) which operates railway infrastructure or operates trains on a railway infrastructure where such infrastructure is used, or intended to be used, wholly or partly for the carriage of members of the public or freight.
\n
(2)This section does not apply to a railway undertaking which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used, or is intended to be used, solely for industrial use.
\n
(3)A railway undertaking to whom this section applies shall appoint persons whom it, with the consent of the Commission, considers are suitably qualified to be authorised persons for the purpose of performing functions under this Part and
\n
Part 9
\n
, on its behalf.
\n
(4)An authorised person is not entitled to perform a function under this Part or
\n
Part 9
\n
unless he or she has received training and instruction, which, in the opinion of the undertaking concerned, is such as will provide appropriate guidance to him or her in the performance of the function.
\n
(5)An authorised person, shall, on his or her appointment under this section, be furnished by the railway undertaking concerned with a warrant of his or her appointment as an authorised person and when performing any function conferred on an authorised person under this Part or Part 9, shall if requested by any person affected, produce such warrant to that person for inspection.
\n
(6)A statement by an employee involved in the management of the railway undertaking concerned that, a warrant of appointment as an authorised person was furnished to a particular person, and such person had received training and instruction which, in the opinion of the undertaking concerned, provided appropriate guidance to such person in the performance by him or her of a function under this Part or Part 9, shall, until the contrary is proved, be sufficient evidence in any proceedings of the fact of, the furnishing of such warrant to such person, receipt by him or her of such training and instruction, and the making of the statement by an employee so involved in the undertaking.
\n
(7)A warrant furnished by an undertaking under subsection (5) shall be in such form and contain such particulars as may, from time to time, be specified by the Commission.
\n
(8)Subject to the Fire Services Act 1981 , an authorised person shall have unhampered access to a railway incident site for the purposes of this Part and
\n
Part 9
\n
.
\n
(9)Subject to the Fire Services Act 1981 , a railway undertaking shall, for the purposes of this Part and
\n
Part 9
\n
, ensure that an authorised person appointed by it has unhampered access to any railway property under its management or control.
\n
(10)An authorised person may be referred to by the undertaking concerned by such title as it decides.
\n
Chapter 2
\n
Intoxicants Function of the Bureau in relation to analysis under Chapter.
\n
96.—(1) The Bureau shall perform the functions assigned to it by this Chapter.
\n
(2)In particular, and without prejudice to the generality of subsection (1), the Bureau shall arrange for— (a) the receipt and analysis of specimens of blood and urine forwarded to the Bureau under this Part and the issue of reports on such analyses, (b) the determination, in respect of such specimens, of the concentration of alcohol in the blood or urine and of the presence (if any) of a drug or drugs in the blood or urine, and (c) the issue of certificates required under this Chapter to be issued by the Bureau.
\n
(3)The Director shall exercise general supervision in relation to the performance by the Bureau of the functions assigned to it by or under this Chapter.
\n
(4)No action or other legal proceedings lie (except in the case of wilful neglect or default) against the Director or any member, officer or employee of the Bureau by reason of, or arising out of, any analysis or determination under this Part.
\n
Offences involving intoxicants by persons working on railway property.
\n
97.—(1) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while being unfit, is guilty of an offence.
\n
(2)A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while there is present in his or her body a quantity of alcohol such that, within 3 hours after so performing that task or of attending at work, the concentration of alcohol— (a) in his or her blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood, (b) in his or her urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine, or (c) in his or her breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath, is guilty of an offence.
\n
(3)The Minister may, by regulations, provide for other amounts, for the time being, to stand in lieu of any of the amounts of alcohol concentration specified in subsection (2)(a), (b) or (c).
\n
(4)A draft of every regulation proposed to be made under subsection (3) shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House.
\n
(5)In this section and in section 87 , “unfit” means, in relation to a safety critical worker, being under the influence of an intoxicant to such an extent that his or her ability to perform a safety critical task, without exposing a person (including himself or herself) to danger or risk of danger, is for the time being impaired.
\n
Obligation to provide specimen of breath.
\n
98.—(1) Where an authorised person or a member of the Garda Síochána is of the opinion— (a) that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, (i) has consumed intoxicating liquor, or (ii) is committing or has committed an offence under section 97 , or (b) where a railway incident occurs, that— (i) a safety critical worker was performing or had performed a safety critical task on the railway infrastructure, or on the train, involved with the incident, or (ii) a safety critical worker failed to perform a safety critical task expected of him or her, on the railway infrastructure, or on a train, involved with the incident, or at the request of an inspector who is of such opinion, he or she may make a requirement of the safety critical worker under subsection (3)(.
\n
(2)Without prejudice to subsection (1), a member of the Garda Síochána or an authorised person may, for the safe operation of a railway undertaking, at random and in circumstances that are reasonable, make a requirement under subsection (3) of a safety critical worker who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work.
\n
(3)A member of the Garda Síochána or an authorised person, may, in the circumstances referred to in subsection (1) or (2), require a safety critical worker— (a) to provide, or to accompany him or her to a place (including a vehicle) at or in the vicinity of the railway infrastructure concerned and there require the worker to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his or her breath, or (b) where the authorised person or member does not have such apparatus with him or her, to remain (for not more than one hour), at an appropriate place on the railway infrastructure concerned or at the scene of the incident, in his or her presence or in the presence of another authorised person or member of the Garda Síochána until such an apparatus becomes available to him or her and the authorised person or member may then require the worker, to provide by exhaling into such an apparatus, a specimen of his or her breath.
\n
(4)Where an authorised person is of the opinion that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, has consumed intoxicating liquor, or is committing or has committed an offence under section 97 , and where a member of the Garda Síochána is not present, the authorised person shall require the safety critical worker concerned to remain (for not more than one hour), as the case may be, at an appropriate place on the railway infrastructure concerned or at the scene of the incident, in his or her presence or in the presence of another authorised person, pending the arrival of a member.
\n
(5)A member of the Garda Síochána or an authorised person making a requirement under subsection (3) may indicate the manner in which the safety critical worker is to comply with the requirement.
\n
(6)A safety critical worker who refuses or fails, to comply immediately with a requirement under this section, or to comply immediately with such a requirement in a manner indicated by a member of the Garda Síochána or an authorised person, is guilty of an offence.
\n
(7)In a prosecution for an offence under this Chapter, it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána or an authorised person for the purpose of enabling a person to provide a specimen of breath under this section is an apparatus for indicating the presence of alcohol in the breath.
\n
Arrest without warrant.
\n
99.—(1) A member of the Garda Síochána may arrest a safety critical worker without warrant if he or she has reasonable cause to suspect that that worker is committing or has committed an offence under section 97 or 98 .
\n
(2)For the purpose of arresting a safety critical worker under subsection (1), where a member of the Garda Síochána has reasonable cause to suspect that the worker is committing or has committed an offence under section 97 or 98 , the member may enter (if need be by force) any place where that worker is or where the member, with reasonable cause, suspects him or her to be.
\n
Obligation to provide specimen following arrest.
\n
100.—(1) Where a safety critical worker is arrested under section 99 , a member of the Garda Síochána may, at a Garda Síochána station, at his or her discretion, do either or both of the following: (a) require the worker to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply with the requirement, (b) require the worker either— (i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or (ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.
\n
(2)If the medical practitioner referred to in subsection (1)(b) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker's blood or be provided by the worker with a specimen of the worker's urine, the member may make a requirement of the worker under subsection (1)(b) in relation to the specimen other than that to which the first requirement related.
\n
(3)Subject to section 108 , a person who refuses or fails to comply immediately with a requirement under subsection (1)(a) is guilty of an offence.
\n
(4)Subject to section 108 , a person who, following a requirement under subsection (1)(b)— (a) refuses or fails to comply with the requirement, or (b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, is guilty of an offence.
\n
(5)In a prosecution for an offence under this Chapter it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath.
\n
Obligation to provide blood or urine specimen while in hospital.
\n
101.—(1) Where a railway incident occurs in consequence of which a safety critical worker is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of opinion that, at the time of the incident— (a) the worker was working on the railway infrastructure or on a train involved in the incident, and (b) the worker had consumed an intoxicant, then the member may, in the hospital, require the worker either— (i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or (ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.
\n
(2)If the medical practitioner referred to in subsection (1) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker's blood under subsection (1)(i) or be provided by the worker with the specimen of the worker's urine under subsection (1)(ii), the member may make a requirement of the worker under subsection (1) in relation to the specimen other than that to which the first requirement related.
\n
(3)Subject to section 108 , a person who, following a requirement under subsection (1)— (a) refuses or fails to comply with the requirement, or (b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, is guilty of an offence.
\n
(4)Notwithstanding subsection (2), it is not an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a medical practitioner and the medical practitioner refuses, on medical grounds, to permit the taking or provision of the specimen concerned.
\n
Detention of intoxicated persons where a danger to themselves or others.
\n
102.—Where a safety critical worker is at a Garda Síochána station having been arrested under section 99 , section 16 of the Road Traffic Act 1994 applies and references in that section to subsection (1) of that section are to be read as including references to this section.
\n
Procedure following provision of breath specimen under section 100 .
\n
103.—(1) Where, consequent on a requirement under section 100 of him or her, a safety critical worker provides 2 specimens of his or her breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen, in case the apparatus determines that each specimen has— (a) the same concentration of alcohol, either specimen, or (b) a different concentration of alcohol, the specimen with the lower concentration of alcohol, shall be taken into account for the purposes of section 97
\n
(2)and the other specimen shall be disregarded.
\n
(2)Where the apparatus referred to in section 100 determines that in respect of the specimen of breath to be taken into account the safety critical worker may have contravened section 97
\n
(2)he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by the apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the apparatus.
\n
(3)On receipt of the statements, the safety critical worker shall on being requested so to do by the member— (a) immediately acknowledge such receipt by placing his or her signature on each statement, and (b) return either of the statements to the member.
\n
(4)A person who refuses or fails to comply with subsection (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000 or to imprisonment for a term not exceeding 1 month, or to both.
\n
(5)
\n
Section 107
\n
(1)applies to a statement under this section as respects which there has been a failure to comply with subsection (3)(a) as it applies to a duly completed statement under this section.
\n
Procedure to be followed relating to specimens taken or provided.
\n
104.—(1) Where under this Chapter a designated medical practitioner has taken a specimen of blood from a safety critical worker or has been provided by the worker with a specimen of his or her urine, the medical practitioner shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.
\n
(2)Where a specimen of blood or urine of a safety critical worker has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the worker one of the sealed containers together with a statement in writing indicating that he or she may retain either of the containers.
\n
(3)As soon as practicable after subsection (2) has been complied with, a member of the Garda Síochána shall cause to be forwarded to the Bureau the completed form referred to in subsection (1), together with the relevant sealed container or, where the safety critical worker has declined to retain one of the sealed containers, both relevant sealed containers.
\n
(4)In a prosecution for an offence under section 97 it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.
\n
Procedure at Bureau regarding specimens.
\n
105.—(1) As soon as practicable after it has received a specimen forwarded to it under section 104 , the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.
\n
(2)Where the Bureau receives 2 specimens of blood so forwarded together in relation to the same safety critical worker or 2 specimens of urine so forwarded together in relation to the same worker, it shall be sufficient compliance with subsection (1) for the Bureau to make an analysis of and determination in relation to one of the 2 specimens of blood or (as may be appropriate) one of the 2 specimens of urine.
\n
(3)As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the prescribed form for the purpose of this section and shall forward a copy of the completed certificate to the safety critical worker who is named on the relevant form under section 104 as the person from whom the specimen was taken or who provided it.
\n
(4)In a prosecution for an offence under section 97 , it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.
\n
Frustrating prosecution.
\n
106.—(1) A safety critical worker shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to comply with a requirement under section 100 ) with the intention of frustrating a prosecution under section 97 .
\n
(2)A person who contravenes subsection (1) is guilty of an offence.
\n
(3)Where, on the hearing of a charge for an offence under section 97 , the court is satisfied that any action taken by the defendant (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his or her breath or urine or to permit the taking of a specimen of his or her blood) was taken with the intention of frustrating a prosecution under that section, the court may find him or her guilty of an offence under subsection (2).
\n
Evidence in proceedings under this Chapter.
\n
107.—(1) A duly completed statement purporting to have been supplied under section 103
\n
(2)is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him or her by or under this Chapter prior to and in connection with the supply by him or her under section 103
\n
(2)of such statement.
\n
(2)A duly completed form under section 104
\n
(1)is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the designated medical practitioner concerned with the requirements imposed on him or her by or under this Chapter.
\n
(3)A certificate expressed to have been issued under section 105 is, until the contrary is shown, sufficient evidence in any proceedings under this Part of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Chapter.
\n
(4)In a prosecution for an offence under section 97 , it shall be presumed, until the contrary is shown, that each of the following persons is a designated medical practitioner— (a) a person who by virtue of powers conferred on him or her by this Part took from another person a specimen of that other person's blood or was provided by another person with a specimen of that other person's urine, (b) a person for whom, following a requirement under section 100
\n
(1)or 101
\n
(1)to permit the taking by him or her of a specimen of blood, there was a refusal or failure to give such permission or to comply with a requirement of his or her in relation to the taking of such a specimen, (c) a person for whom, following a requirement under section 100
\n
(1)or 101
\n
(1)to provide for him or her a specimen of urine, there was a refusal or failure to provide such a specimen or to comply with a requirement of his or her in relation to the provision of such a specimen.
\n
(5)Where, pursuant to section 100 or 101 a designated medical practitioner states in writing that he or she is unwilling, on medical grounds, to take from a person a specimen of his or her blood or be provided by him or her with a specimen of his or her urine, the statement signed by the medical practitioner is, in any proceedings under this Part, sufficient evidence, until the contrary is shown, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it.
\n
Defences.
\n
108.—(1) In a prosecution of a safety critical worker for an offence under section 100 for refusing or failing to comply with a requirement to provide 2 specimens of his or her breath, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.
\n
(2)In a prosecution of a safety critical worker for an offence under section 100 or 101 for refusing or failing to comply with a requirement to permit a designated medical practitioner to take a specimen of blood or for refusing or failing to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the provision of a specimen of urine.
\n
(3)Notwithstanding subsections (1) and (2), evidence may be given at the hearing of a charge of an offence under section 97 that the defendant refused or failed to comply with a requirement to provide 2 specimens of his or her breath, or that the defendant refused or failed to comply with a requirement to permit the taking of a specimen of his or her blood or to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, as the case may be.
\n
(4)It is not a defence for a person charged with an offence under section 97 to show that, in relation to the facts alleged to constitute the offence, an analysis or determination under this Chapter, has not been carried out or that he or she has not been requested under section 98 to provide a specimen of his or her breath.
\n
Penalties.
\n
109.—A person guilty of an offence under this Chapter (other than section 103
\n
(4)) is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months, or to both.
\n
Chapter 3
\n
Carelessly or dangerously working or working while unfit, on railway Careless working on railway.
\n
110.—(1) A safety critical worker shall not perform a safety critical task on railway property or in a public place without taking due care and attention.
\n
(2)A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €2,500 or to imprisonment for a term not exceeding 3 months, or to both.
\n
Dangerous working on railway.
\n
111.—(1) A safety critical worker shall not perform a safety critical task in a manner which, having regard to all the circumstances of the case, is dangerous to the safety of persons or poses an unreasonable risk of harm to persons.
\n
(2)A person, being a supervisor, manager, director or secretary of a railway undertaking, shall not instruct a safety critical worker to perform a safety critical task in a manner that may cause that worker to contravene subsection (1).
\n
(3)A person who contravenes subsection (1) or (2) is guilty of an offence and is liable— (a) on conviction on indictment to a fine not exceeding €100,000 or to imprisonment for a term not exceeding 5 years, or to both, or (b) on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months, or to both.
\n
(4)In proceedings for an offence under subsection (3), it shall be a defence for the person against whom such proceedings are brought to prove that the safety critical task— (a) in respect of a contravention of subsection (1), was performed, or (b) in respect of a contravention of subsection (2), was instructed to be performed, in accordance with written rules or procedures of the railway undertaking concerned, where those rules or procedures specify the manner in which that task should be performed.
\n
(5)Where, when a person is tried on indictment or summarily for an offence under this section, the jury, or, in the case of a summary trial the District Court, is of the opinion that he or she was not guilty of an offence under this section but was guilty of an offence under section 110 , the jury or court may find him or her guilty of an offence under section 110 and he or she may be sentenced accordingly.
\n
(6)Where a member of the Garda Síochána is of the opinion that a person has committed an offence under this section causing loss of life or serious personal injury to another person, the member may arrest the person without warrant.
\n
Medical fitness for duty.
\n
112.—(1) A railway undertaking may require a safety critical worker to undergo an assessment by a medical practitioner, nominated by the undertaking, of his or her fitness to perform a safety critical task and such person shall co-operate with such medical assessment.
\n
(2)Railway undertakings shall ensure that safety critical workers undergo assessment by a medical practitioner of their fitness to perform safety critical tasks.
\n
(3)Where, following an assessment under subsection (1), a medical practitioner is of the opinion that a safety critical worker is unfit to perform a safety critical task, he or she shall notify the railway undertaking concerned, by the quickest practicable means, of that opinion and shall inform the safety critical worker of that opinion and the reasons for that opinion.
\n
(4)If a safety critical worker becomes aware that he or she is suffering from any disease or physical or mental impairment which, should he or she perform a safety critical task, would be likely to cause him or her to expose a person to danger or risk of danger, he or she shall immediately notify the railway undertaking concerned.
\n
(5)Where a railway undertaking receives a notification under subsection (3) or (4), it shall not permit the safety critical worker concerned to perform a safety critical task until such time as an assessment under subsection (1) confirms that he or she is fit to so perform that task.
\n
(6)The Commission may, with the consent of the Minister, and after consultation with railway undertakings, organisations which represent staff of railway undertakings, the Medical Council, the Health and Safety Authority and such other persons as in the opinion of the Commission may be relevant, make regulations in relation to all or any of the following— (a) the nature of a medical assessment under subsection (1) and the matters that shall be assessed, or (b) the frequency of an assessment under subsection (2).
\n
(7)The Commission may, after consultation with railway undertakings, organisations which represent staff of railway undertakings, the Medical Council, the Equality Authority, the Health and Safety Authority and such other persons as in the opinion of the Commission may be relevant, publish guidelines in relation to the types of disease or physical or mental impairment which may require notification by a safety critical worker to a railway undertaking under subsection (4).
\n
(8)On each occasion that a safety critical worker attends his or her medical practitioner, he or she shall inform that medical practitioner of his or her position as a safety critical worker.
\n
PART 11
\n
Works by Road Authorities, etc.
\n
Works on public roads in the vicinity of railway infrastructure.
\n
113.—(1) A person (other than a road authority or a person acting under contract on behalf of a road authority) shall not commence or carry out any works on a public road in the vicinity of railway infrastructure where such works may, in his or her reasonable opinion having regard to any guidelines published by the Commission under subsection (4), affect the safe operation of that infrastructure without obtaining the prior written consent of the road authority concerned, and subject to any conditions contained in such consent.
\n
(2)Before giving its consent under subsection (1), a road authority shall notify the railway undertaking concerned of the proposed works and shall consider any objections or representations, made to it in writing within 21 days of notification, by the railway undertaking concerning the proposed works.
\n
(3)A road authority shall, before it commences or authorises a person to commence under contract on its behalf, any works on a public road in the vicinity of a railway infrastructure which may, in its reasonable opinion having regard to any guidelines published by the Commission under subsection (4), affect the safe operation of the infrastructure, notify the railway undertaking concerned of its intention and shall consider any objections or representations, made to it in writing within 21 days of notification, by the undertaking concerning the intended works.
\n
(4)The Commission may, after consultation with the Minister, the Minister for the Environment, Heritage and Local Government and the National Roads Authority, publish guidelines in relation to any works on a public road in the vicinity of railway infrastructure which may affect the safe operation of the railway infrastructure.
\n
(5)Nothing in this section shall prevent a road authority or other person from carrying out works in advance of a requirement under this section where such works are necessary to eliminate or reduce an immediate danger or risk to persons or property.
\n
(6)Where works are carried out in accordance with subsection (5), the road authority or person concerned shall, as soon as practicable after the commencement of such works, comply with the requirements of this section.
\n
(7)A person who carries out any works on a public road in the vicinity of a railway infrastructure shall take all reasonable steps to ensure that the works do not affect the safe operation of the infrastructure.
\n
(8)A person who is for the time being responsible for works completed on a public road in the vicinity of a railway infrastructure shall take all reasonable steps to ensure that the works do not affect the safe operation of that infrastructure.
\n
(9)A person who contravenes this section is guilty of an offence and is liable— (a) on summary conviction, to a fine not exceeding €3,000, or (b) on conviction on indictment, to a fine not exceeding €500,000.
\n
(10)In this section, “works” includes, but may not be limited to— (a) in the case of a public road — road excavation or resurfacing, road widening or narrowing, signage, road markings, traffic signalling and protective barriers in the vicinity of railway infrastructure, a railway level crossing or a road over or under a railway or a road tunnel, and (b) in the case of a railway undertaking — new works under section 42
\n
(15).
\n
PART 12
\n
General Enforcement and Offence Provisions relating to Railway Safety and Conduct of Persons on Railways Unlawful use of railway.
\n
114.—A person who uses or attempts to use a train or other mechanically propelled vehicle on a railway, other than a light railway (within the meaning of the Transport (Railway Infrastructure) Act 2001 ) without the express consent of the railway undertaking concerned, is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.
\n
Deliberate or wanton damage to railway.
\n
115.—A person who deliberately or wantonly causes or attempts to cause damage to any railway property is guilty of an offence.
\n
Obligation to notify danger caused to railway.
\n
116.—(1) A person who causes a hazard or risk to persons by accidentally or negligently causing any structure, vehicle, or other matter or thing to come to lie on railway infrastructure, or to over-hang or protrude into the operational area above or adjacent to railway infrastructure, shall immediately notify the railway undertaking concerned or a member of the Garda Síochána.
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(2)A person who, without reasonable excuse, contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000, or to imprisonment for a term not exceeding 3 months, or to both.
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Obligation not to expose person to danger on railway.
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117.—A person who deliberately or wantonly exposes another to danger on railway property is guilty of an offence.
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Unlawful use of system of communication between passengers and train drivers.
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118.—Where a railway undertaking provides an emergency cord or other system of emergency communication between the passengers and the driver of a train, any person who uses that cord or system without reasonable and sufficient cause is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 1 month, or to both.
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Attempting to obstruct, damage or derail a train, etc.
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119.—A person who, without lawful authority, deliberately or maliciously— (a) puts, places, casts or throws upon any railway property or across any railway track any wood, stone, vehicle or other matter or thing, (b) takes up, removes or displaces any rail, sleeper, or other matter or thing belonging to a railway undertaking, or (c) turns, moves or diverts any points, signals or other plant or machinery belonging to a railway undertaking, to obstruct, damage or derail a train or to injure persons present on, using or working on railway property is guilty of an offence.
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Penalty.
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120.—A person guilty of an offence under section 115 , 117 or 119 is liable— (a) on conviction on indictment, to a fine not exceeding €100,000 or to imprisonment for a term not exceeding 3 years or to both, (b) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 3 months, or to both.
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Power to arrest by member of Garda Síochána.
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121.—A member of the Garda Síochána may arrest a person without warrant where the member reasonably suspects that the person is committing or has committed an offence under— (a) section 59
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(1)of the Transport Act 1950 , (b) section 25
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(1)of the Transport (Miscellaneous Provisions) Act 1971 , or (c) this Part.
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PART 13
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Procedural Prosecution of summary offences.
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122.—(1) Proceedings for an offence under this Act may be brought and prosecuted summarily by the Commission.
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(2)The Commission shall be entitled— (a) to view and take copies of any record or other evidence gathered or obtained by the Investigation Unit during the course of its investigation of a railway incident under section 58 , and (b) subject to section 58
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(17), to submit as evidence in criminal or other proceedings any such record or other evidence.
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(3)Notwithstanding section 10
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(4)of the Petty Sessions (Ireland) Act 1851 , summary proceedings for any offence under this Act may be instituted at any time within 2 years after the date of the offence.
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Offences by bodies corporate.
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123.—Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
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Cost of prosecutions.
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124.—Where a person is convicted of an offence under this Act, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order that person to pay to the Commission the costs and expenses, measured by the court, incurred by the Commission in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees or persons engaged by the Commission.
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Service of notices, etc.
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125.—(1) Where a notice, notification or direction is required under this Act to be given to or served on a person, the notice or direction shall be in writing and shall be addressed to that person and shall be given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or carries on business; (c) by sending it by post in a pre-paid registered letter or by any other form of recorded delivery service, addressed to the person at the address at which the person ordinarily resides or carries on business; (d) if an address for the service of notices, notifications or directions has been furnished by the person, by leaving it at, or sending it by pre-paid registered post or by any other form of recorded delivery service addressed to the person to, that address; (e) in any case where the Commission considers that the immediate giving of the notice, notification or direction is required, by sending it, by means of a facsimile machine or electronic mail, to a device or facility for the reception of facsimiles or electronic mail located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender's— (i) facsimile machine generates a message confirming successful transmission of the total number of pages of the notice, or (ii) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail.
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(2)For the purposes of this section, a company registered under the Companies Acts 1963 to 2005, shall be deemed to be ordinarily resident at its registered office and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
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Disclosure of records.
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126.—(1) The Investigation Unit, the Commission, a railway undertaking or any other person concerned with the conduct of an investigation under section 53 or 58 or with an inquiry under section 64 shall not disclose the following records to any other party for purposes other than such investigation or inquiry: (a) statements taken by an inspector, railway undertaking or other person in the course of the investigation or inquiry; (b) medical or private information regarding persons involved in the railway incident which is the subject of the investigation or inquiry; (c) voice or video recordings or transcripts of such recordings; (d) data recordings or output from such recordings which are not relevant to the investigation or inquiry; (e) opinions expressed in the analysis of information; and (f) observations submitted in accordance with section 62
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(3)where the person who has submitted the observations so requests.
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(2)Notwithstanding subsection (1), the Commission or tribunal may disclose a particular record where it considers, in respect of the particular record, that the probable benefits to the public interest from such disclosure would outweigh any adverse impact of such disclosure on that investigation or inquiry or on any future investigation by the Commission, or railway undertaking or an inquiry by a tribunal.
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(3)Subsection (1) shall not preclude the Commission, a railway undertaking or a tribunal from including such records in a report under section 53 , 60 , 62 or 64 where the information is pertinent to the analysis of the cause of a railway incident or the recommendations arising from the investigation of or inquiry into such incident.
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(4)Any record, other than a record under subsection (1), held by the Commission or a tribunal in the course of an investigation or inquiry shall not be made available by the Commission or tribunal to any other party except for the purposes of an investigation or inquiry until after the day of publication of a report under section 60 or 64 or the finalisation of a report under section 53 unless the Commission or tribunal as the case may be deems it appropriate in the public interest to do so.
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(5)For the avoidance of doubt, information specified in subsection (1) shall— (a) where held by a railway undertaking, be provided to the Commission or a tribunal on receipt of a request from the Commission or the tribunal, and (b) where held by the Commission or a tribunal in relation to an investigation or an inquiry relating to an international service, and where the Commission or the tribunal considers that there is a benefit in so doing, be provided on receipt of a request from a relevant competent authority in another state, to such authority.
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(6)In this section, “tribunal” means a tribunal of inquiry under section 64 .
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PART 14
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Provisions Relating to Córas Iompair Éireann Compulsory acquisition of land.
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127.—
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Section 17
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of the Transport Act 1950 is amended by substituting for subsections (1) and (2) the following: “(1) The Minister may, if and whenever he or she thinks fit, on the application of the Board, by order (‘Acquisition Order’) authorise the Board for the purpose of the exercise of its powers and duties or of the powers and duties of any of its subsidiary companies to— (a) acquire compulsorily such land as may be specified in the order, or (b) close, stop up, remove, alter, divert or restrict an existing means of crossing a railway as may be specified in the order.
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(2)An Acquisition Order— (a) shall provide for the payment of compensation by the Board to the several persons having estates or interests in the land to which the order relates, (b) shall provide that any question of disputed compensation shall be determined, subject to subsection (2A), under and in accordance with the Acquisition of Land (Assessment of Compensation) Act 1919 and, for this purpose, the Board is deemed to be a public authority within the meaning of that Act, and (c) may incorporate all or any of the provisions of the Land Clauses Acts, with such modifications and adaptations as the Minister thinks proper. (2A) An official arbitrator appointed under section 1 of the Acquisition of Land (Assessment of Compensation) Act 1919 shall— (a) in assessing compensation for the closure, stopping up, removal, alteration or restriction of an existing means of crossing the railway, have regard to any new means of access provided by the Board to affected lands and where appropriate to any existing means of access (where restricted or otherwise) that remains, and (b) have jurisdiction to make a nil award.”.
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Matters relating to bye-laws, etc.
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128.—The Transport Act 1950 is amended— (a) in section 20(1), by inserting after paragraph (b) the following: “(bb) the provision of parking facilities for vehicles on land belonging to or occupied by the Board, including fees for failure to comply with bye-laws made under section 22(1)(ee),”, (b) in section 22— (i) by inserting after paragraph (e) of subsection (1) the following: “(ee) for matters relating to the use and parking of vehicles on land belonging to or occupied by the Board including— (i) the regulation of traffic generally, including, parking restrictions, direction of traffic and the maximum speed of traffic on such land, (ii) the making of provision for the fixing of an immobilisation device to any vehicle which has been unlawfully parked in any place on such land, and (iii) the regulation of small public service vehicles (within the meaning of section 3 of the Road Traffic Act 1961 ) at railways or the approaches thereto;”, and (ii) by substituting for subsection (4) (as amended by section 6 of the Transport Act 1987 ) the following: “(4) Where a person contravenes a provision of bye-laws made under this section which is stated in the bye-laws to be a penal provision, he or she is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000. (4A) The liability of an offender to a penalty under subsection (4) of this section does not prejudice the recovery of any fare, tariff or fee payable by him or her to the Board for any damage caused by him or her to property of the Board. (4B) An offence under subsection (4) of this section may be prosecuted by the Board.”, and (c) in section 59, by substituting for subsection (1) (as amended by section 7 of the Transport Act 1987 ) the following: “(1) A person who trespasses on any of the railways of or worked by the Board is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.”.
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Powers of authorised officers.
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129.—The following section is inserted after section 22 of the Transport Act 1950 : “22A.—(1) If an authorised officer reasonably suspects that a person—