Criminal Justice Bill 2011-May 2011

20th May, 2011

Here are some of the points that I made in the Dail on Wednesday 18th May

Bill on White Collar Crime


The Irish people and Mr. Justice Peter Kelly are united in asking why the investigations under way have taken so long and why have we not reached a point where the State has been successfully able to bring a case to court and deliver a prosecution? That is the reason many of the elements of the Bill must be welcomed. This Bill is a substantive attempt to recognise these difficulties and deal with them. Some of the proposals and actions prescribed in the Bill, for example, with regard to suspending detention, orders to produce documents or information, documentary evidence and a new clause of withholding information, are important measures which will make a difference towards leading to a successful prosecution of crimes laid out.

The Bill focuses on white collar crime. Until recently, this area has been distinguishable by three particular characteristics. First, it is a crime that is tended to be seen as victimless. Second, it is a crime that tends to be highly complicated and third, it is a crime that, until recently, was perpetrated by people who were seen as people of good character. The State has paid a heavy price in learning that these definitions and characteristics of white collar crime can have a decisive effect on the fortunes of our country. We have learned that these crimes are anything but victimless crimes. We know who the victims are. They are the taxpayers who must now deal with the cost of our banking system catastrophe. We have learned they are highly complicated crimes. This characteristic of white collar crime has been reaffirmed by our experience. We have also learned that the people who have committed these crimes have not been people of good character. A mistake that has been made is that we have allowed the deviation and a difference to develop between what is legal and what is moral. Clearly, for too many people, meeting the bare minimum legal requirements was not consistent with acting in a moral fashion. We have learned the great cost of that over the past three years.

I wish to make four further points with regard to the Bill. First, I would like to compare the acceleration of legislation in financial regulation as opposed to the Bills that are laid down here which deal with the more judicial aspects of white collar crime. As someone who was involved with some of this legislation in the Seanad, I am struck by the fact that, for example, the Central Bank Reform Act 2010 lays out some strong powers the State has with regard to people performing what is described as “controlled functions” within our banking system, whereby the State will have new power to dismiss and take rapid action against people performing these functions. The Credit Institutions (Stabilisation) Bill 2010 laid out clearly a definition of “systemic risk” with regard to the banking system and created a new role of a “special manager” and granted that individual huge power with regard to banks or financial institutions that were seen as posing a systemic risk to the health of our country. The question I would ask is whether there is a mismatch between the legislation that is being delivered from the financial regulation point of view and the legislation that issues in the judicial area. For example, within the Credit Institutions (Stabilisation) Bill there is a clear definition of systemic risk. Is there a case to be made that even greater powers be granted to people who are trying to deal quickly with cases relating to systemic risk? I would like to hear a response from the Minister on this.

The second point relates to areas of the Bill I particularly welcome. I welcome section 15 of the Bill, which relates to documentary evidence. We should recall that when the famous raid was made in February 2009 on Anglo Irish Bank headquarters, some 3.7 million documents were acquired in the process of the raid and the subsequent investigation. The provisions in this Bill with regard to the indexation of documents and how they are provided is clearly a result of the lesson that has been learned from the Anglo Irish Bank investigation. That is particularly welcome. I also strongly welcome section 19 of the Bill, which lays out the details with regard to the withholding of information and why this now becomes a crime. If somebody who is involved in or aware of an investigation taking place does not bring forward information of which he or she is aware, which impedes or slows down the investigation of the Bill, that itself is then prescribed as a crime. While I strongly welcome the overall Bill, sections 15 and 19 appear to make very strong progress in expediting these investigations.

The third area I want to emphasise relates to the resourcing of the agencies involved. I know this is an area about which the Minister, Deputy Shatter, is very concerned about and one which he questioned in his first days as Minister for Justice and Equality. As we are questioning whether the resources are there, it is worth having the figures for the resources we have. The Office of the Director of Corporate Enforcement spent €3.7 million on corporate enforcement activities covering 425,000 companies, which is expenditure of €9 or €10 per company per year. We have a duty to question that. The British Financial Services Authority has a budget of £538 million and is increasing its staff to 3,700 this year. The British Serious Fraud Office has a budget of £51 million. I know our authorities and the Government are committed to do all they can to ensure these agencies are well resourced. This is a question we need to ask continually.

I will conclude on the powers available to these agencies. The Competition Authority made an excellent submission to the consultative paper on white collar crime the Department of Justice and Law Reform published last year. It questioned whether it would be possible to extend the investigative powers available to other agencies to give them more teeth. Apparently one of the reasons for the delay in the investigation into Anglo Irish Bank has been the unwillingness of one individual for nine months to comply with the investigation agencies, one of which is the Office of the Director of Corporate Enforcement (“ODCE”). We need to question again whether the powers are there. I look forward to the Minister’s response. I strongly welcome the Bill. I know the Government is completely committed to dealing with the matter and strengthening the solidarity we have in this area.