Tuesday, 31 May 2011
Dáil Éireann Debate
Edwin Sutherland first popularised the term “white collar crime” in 1939, defining such a crime as one “committed by a person of respectability and high social status in the course of his occupation”. He also included crimes committed by corporations and other legal entities within his definition. As a leading criminologist and sociologist, his study of white collar crime was prompted by the view that criminology had incorrectly focused on social and economic determinants of crime, such as family background and level of wealth. According to Sutherland’s view, crime is committed at all levels of society and by persons of widely divergent socio-economic backgrounds. In particular, he contested that crime is often committed by persons operating through large and powerful organisations. White collar crime, he concluded, has a greatly underestimated impact upon our society. Sutherland’s definition is, however, now somewhat outdated.
As an alternative to the socio-economic definition, many define “white collar crime” instead by the manner in which the crime is committed. The United States Department of Justice now describes it as non-violent crime for financial gain committed by means of deception by persons whose occupational status is entrepreneurial, professional or semi-professional and utilising their special occupational skills and opportunities and also non-violent crime for financial gain utilising deception and committed by anyone having special technical and professional knowledge of business and government, irrespective of the person’s occupation.
The lifeblood of white collar crime lies in the fact that, unfortunately, people tend to draw the line where criminality begins and put their toes right up to that line. In our recent and not so recent past, banking executives, business leaders and politicians were dangerously close to committing criminal behaviour as defined by our laws and it seemed that they just wanted to stand on the other side of the line.
Even the perception, never mind the reality, of corruption, fraud, tax evasion, bribery, brown envelopes and-or political favours is detrimental to institutions, organisations and individuals. Prosecutors have powerful reasons to target white collar criminals. In addition to the loss of public confidence, white collar crime also causes huge financial losses to the state and local government, private organisations and individuals.
Internationally, the severity of the white collar crime problem has been acknowledged as one of the most serious problems confronting law enforcement authorities. In the United States, one sees people who are white collar criminals led out in handcuffs. Bernie Madoff ran a ponzi scheme and within 12 months was sentenced to 150 years imprisonment. On 10 December 2008, Madoff’s sons told authorities that their father had confessed to them that the asset management unit of his firm was a massive ponzi scheme and quoted him as describing it as “one big lie”. The next day, FBI agents arrested Madoff and charged him with one count of securities fraud.
The US Securities and Exchange Commission had previously conducted investigations into Madoff’s business practices but did not uncover the massive fraud. On 29 June 2009, Madoff was sentenced before a court of law to the maximum sentence of 150 years in federal prison. In just over six months, charges had been brought, the case had been built and the trial was complete. Naturally, the particulars of that case do not apply across the board but the point remains valid. People want to see the same apply in this State.
While at all times protecting the most fundamental tenet of our system, the presumption of innocence, with the right focus, application and determination, the same regime can apply here. Prompt action against perpetrators of white collar crime is of the utmost importance if public confidence is to be restored and maintained. It has tarnished the name of this House and sullied the position of public representatives right across this State. For many years — for as long as I remember — rumours and allegations and an obvious absence of political will to challenge corrupt behaviour have plagued big business and politics in Ireland. I hope that after recent revelations arising out of various tribunal reports, a watershed has been reached in the State’s attitude to these crimes.
There has long been in Ireland a perception that there is one set of rules for the ordinary working people and another set for the banking, business and political class. It is difficult to disagree when Government after Government follows an economic strategy which seems to reinforce that position. Ordinary working families can be left to struggle to pay household bills and mortgages and be faced with the possibility of losing their home while the architects of the single greatest financial crisis in the history of this State walk away scot free. Not only do they walk away scot free but to add insult to injury, in many cases, they walk away with golden handshakes, handsome pensions and all the trappings of grandeur. This cannot continue.
This Bill can play some role in ensuring that those who have broken the law can be prosecuted. However, I stress that on its own, the enactment of this Bill will not be enough. It must form part of a complete and holistic approach to the complex issue of white collar crime. We will need to provide answers to some of the following questions. Will gardaí who will have strengthened investigative powers, as granted by this Bill, have the manpower and expertise to bring cases and convictions? The Association of Garda Sergeants and Inspectors publicly expressed concerns in this regard at its recent conference. Will people suspected of white collar crimes continue to flout the law, at least the spirit of the law, by transferring assets to spouses, family and others in an attempt to protect their wealth? It is an insult to the people of this State to see bankers on Monday own a mansion, a Mercedes and have millions in cash and other assets tucked away but on Tuesday say, “No it’s my wife’s house, my son’s car and I’m living on a subsistence allowance of €150 per week”. The hand of the Garda must be appropriately strengthened in this regard.
Similarly, as a matter of some urgency, we must see before this House, the much awaited whistleblower legislation. So often in the past the focus shifts to those who made the allegations and not to the substance of the allegations themselves. As a consequence, incidents of white collar crime went unchallenged and repeated themselves in different ways for decades. Complicit in this was an historical reluctance of potential whistleblowers to come forward.
This was complemented by traditional fear, a corrosive culture of secrecy which has dominated every aspect of Irish life. The same moral equivocation responsible for political corruption was widespread and contributory in the banking crisis. This scenario must change if this Bill is to have the desired impact.
We need to create a culture where wrongdoing is not accepted, where those who speak out against it are protected and where the absolute deference shown to senior professionals is challenged. We have seen in high profile cases, for example, in the health service, where individuals who speak out can empower so many.
Now, more than ever, we must challenge the mindset that inhibits reflection and assessment of why wrongdoing has occurred in the first place. Public life has been paralysed by the refusal to acknowledge as much publicly. A society can only learn from its mistakes when it acknowledges that mistakes have been made. If we are serious about addressing systemic failures, a priority must be the introduction of comprehensive legislative protection for whistleblowers. Given the complexity of white collar crimes, a corruption immunity or leniency programme for certain witnesses, who are also accomplices to offences, will be a necessary part of this.
In regard to section 19, which deals with withholding information, and in addition to the lack of protection for whistleblowers, there is also a number of defences which may be raised to a charge of withholding information which will limit its effect. In the first instance, this duty applies to witnesses only and not to suspects, because of the right to self-incrimination. It is also likely that certain relationships, such as that of client and solicitor, will be exempt from this duty because of legal professional privilege and where other confidential professional relationships exist. This aspect of the Bill is a cause for concern and warrants further discussion as it progresses through the House.
Deputy Michael Colreavy: I welcome the opportunity to speak on an issue of great importance at a time our country is in such a difficult situation. Overall I welcome the Bill in the sense that it seems likely to encourage people to do the right thing and to discourage them from doing the wrong thing. I am a strong advocate of making it easy for people to do the right thing. Our country has been plagued by rumours of backhanders, brown envelopes and political favours. We are all agreed that the era of political favours, asking and giving, must be put to an end. Politics can no longer be conducted in that way. This Bill is a welcome attempt to deal with those types of crime. However, we must be sure it goes far enough to stamp out such practices. We must ensure the failures of the past are never allowed to recur.
Legislative measures must be ramped up in order to stamp out white collar crime. The Government must go that bit further. Specifically, we need a commitment to introduce legislation relating to whistleblowers. That should have been brought forward at the same time as, or perhaps even before, this Bill. There is an urgent need for protection for workers who come forward to report corporate misconduct. By introducing such legislation the number of white collar crime prosecutions will rise, which will send a clear signal that it is no longer acceptable. That needs to be done now.
I welcome the announcement of the Minister with responsibility for public expenditure and reform, Deputy Howlin, last Thursday that such legislation will be put in place by the end of the year. Speaking at the launch of Transparency International’s Speak Up helpline he said:
I look forward to holding the Government to account on this promise. Like my colleague, Deputy Jonathan O’Brien, I call on the Government to implement a timetable of preventative measures in respect of white collar crime. The Government must introduce liability for corruption offences, corruption immunity or a leniency programme for certain witnesses who are also accomplices to offences, and comprehensive corporate liability. Companies investigated for white collar crime must clearly show they have preventative anti-bribery mechanisms in place and this must be taken into account in assessing liability and sentencing.
The Government must offer a firm commitment that there will be adequate resourcing for the Garda and regulatory agencies in order to investigate and detect offences. However, this has been put into question by recent statements from the Association of Garda Sergeants and Inspectors that there are insufficient officers in the Garda Bureau of Fraud Investigation to tackle white collar crime. In addition, there should be clear sentencing guidelines for the Judiciary in regard to corruption-related offences. We should not have a situation where thieves in tracksuits go to prison while those in suits go home unpunished. Sinn Féin has called for the use of socio-economic victim impact statements and relevant expert analysis in courts.
The concept of what is illegal is different from the concept of what is wrong, and these need to be brought closer together. I listened with great interest to Deputy Peter Mathews who, as usual, made a well balanced contribution to the debate on this legislation two weeks ago in pointing out that what the public universally views as being wrong is not necessarily an offence in law. That puzzles and disturbs many people. For example, the public cannot understand why a financial institution can apparently transfer on a short-term, almost overnight, basis, either €78 million or €87 million — the figures are nearly immaterial at this stage — to another institution in order to mislead the public into thinking that the second host institution is in a stronger financial position than it actually is. The public is puzzled by this and the public would say — and I agree — that those who colluded in the transfer of that money, those who colluded in the receipt of the money, and the auditors who signed off the books for both institutions did the taxpayers of this country and this economy a grievous wrong. That action should have been unquestionably illegal. Yet, as I understand it, some of those people are currently receiving public funds for their work with the National Asset Management Agency. Is it any wonder the public needs reassurance that the Government is taking seriously the corruption of white collar crime?
The public needs to see that when wrong is done and when taxpayers’ money is plundered or abused in such a way that there is a clear legal recourse for Government. Unfortunately, this Bill does not introduce the clarity that is needed in this regard and which is required without delay. Only the people can hold their leaders to account but they are generally ill equipped to do so. Instead they depend on regulatory agencies, the Department of Justice and Equality, the Garda and so on to do it for them. We must ensure the people are part of the fight against white collar crime. Our first step in that regard is to ensure there is a closer alignment in law of what is wrong and what is illegal.
Deputy Seán Kenny: I welcome the introduction of legislation to increase prosecutions in respect of white collar crime. This is a very serious type of crime that, as this House knows only too well, has caused the most serious damage to the nation economically, socially and morally.
This Bill is radical in that it provides for the 24-hour period of detention by gardaí for serious offences to be broken up into segments. As I understand it, under the existing criminal law where arrests and detention of suspects is concerned, there is provision for a break from questioning from midnight to 8 a.m. The new Bill allows for temporary release under the 24-hour period that will see the detained suspect released for the purposes of assisting an investigation before being recalled to detention or officially released, as appropriate. This provision is included in order to give investigators the ability to check and reference facts and examine documents, which is an area in which past investigations into while collar crimes have been hindered.
I welcome that provision, as well as new powers given to the Garda that allow it to apply to the District Court to obtain an order to compel individuals or corporate entities to produce documents or make statements related to a specific investigation. Measures in the Bill prevent delays arising from a refusal to disclose a document on the basis of legal privilege by permitting investigators to have recourse, again to the District Court, to determine whether the claim of privilege is justified. This will help such instances ending in a stalemate. These are all positive measures that I welcome.
The Minister has stated that, once enacted, the legislation can be availed of to assist investigations currently under way as well as future investigations. This is very important because there was a belief that some people would escape its provisions. This is to be welcomed, as it means current investigations of public concern can benefit from the new legislation and not be exempt from it.
On the subject of investigations, the Minister should consider the substantial strengthening of the Office of Director of Corporate Enforcement. More staff for this office is required to investigate the crimes and misdemeanours of those involved in white collar crime. He should make no mistake — the electorate expects this and rightfully so. It would be remiss of this Dáil not to take action. The recent general election marked a change in the mindset of the Irish electorate. Fianna Fáil failed to convince the people that what they did was right and in the people’s interests. Being disingenuous with a sincere face will not work in Ireland for a long time to come. The Irish people will now turn rapidly against a political force if there is any suspicion that it is not working in the interests of the people and the community. This is why we must take action to investigate white collar crime.
I suggest the Minister considers an aspect of the Companies Acts to add further weight to a good item of legislation. Individuals involved in white collar crime, even if the offence is withholding of information and not more serious, are not individuals that this society wants to see involved in Irish business life. Sections 150 and 160 of the Companies Act 1990 allow for the restriction or disqualification of directors who breach the Companies Acts. Will the Minister consider extending these two sections to this Bill? This would add weight to the legislation. Indeed, section 160 of the Companies Act 1990 reads in such a way that it may already apply:
Deputy Dara Murphy: I thank the Ceann Comhairle for the opportunity to speak on this important Bill. Anyone who canvassed in the recent general election will testify that there is no doubt the Irish people are frustrated with how white collar crime is dealt with in Ireland. In many cases, this perception is justified. The publication of this Bill, after such a short period in government, is a testament to the commitment of this partnership Government to effecting real change for our country. I compliment the Minister on bringing it forward so quickly.
It is a travesty that the last Government did not enact even some sections of this legislation sooner. The stance of Fianna Fáil, none of whose Members is in the Chamber, is cynical, hypocritical and self-serving. These were terms I used two weeks ago when I spoke on the Fianna Fáil Bill on political donations. The Fianna Fáil strategy is either to plagiarise the current programme for Government or to claim it was pending legislation from the last coalition or the last 14 years in government. Once again, Fianna Fáil is claiming this ideology as its own.
Many areas were neglected by the past Government. Sadly, it was its lack of accountability, the absence of oversight and a poor understanding of the banking and financial industries that caused much of Ireland’s most recent pain. These were combined with sins of omission and ignorance and sins regarding compliance. The relationship between senior members of the last Fianna Fáil Government and senior financial and business personnel has long been a concern in Ireland. The excuse is often given that questions on issues arising or suggested impropriety in the financial sector were matters for the Garda Síochána and, by extension, the DPP and the Judiciary. For too long, politicians have abdicated responsibility due to the separation of powers. There is a dual responsibility and the obligation of this House and its elected Members is to legislate. We must provide our legal authorities, the Garda Síochána, prosecutors and the Judiciary with the tools to investigate, prosecute and convict. The best friend of anyone seeking to avoid justice is the absence of good legislation. This Bill will send a clear message that the 31st Dáil is no friend to white collar crime and white collar criminals.
The Government wants to reform and address certain areas quickly. Mr. Justice Peter Kelly’s frustration at the pace of investigation are concerns we all share. The programme for Government commits that rogue bankers and all those who misappropriate funds are pursued and the full power of the law is applied to them. The purpose of this Bill is to amend the criminal law and to improve certain procedural matters. It will increase the investigative powers of the Garda Síochána and reduce the delays associated with the investigation and prosecution of complex crime, particularly white collar crime. The proposals in this Bill are based on the experiences of those involved in prosecutions and investigations. In particular, they are based on the experiences of those involved in current investigations. The importance of the Bill rests in ensuring the new powers and procedures herein provided will speed up future and, most crucially, current investigations.
A broad range of offences will be specified by ministerial order. However, the Minister must consult with another Minister before making such an order. These provisions will allow the Garda Síochána to follow-up information obtained during questioning and conduct further investigations during the period of suspension. The period of detention can be broken up but the person may have it suspended on no more than two occasions.
Recent history has shown us that investigations can be hampered and damaged by the reluctance of some potential witnesses to make statements or provide information to investigators or the Garda Síochána. The Bill provides a welcome mechanism whereby an application can be imposed on individuals, companies and all witnesses to provide information, answer questions and make statements in respect of investigations into relevant offences. I commend the Bill to the House.
Deputy Brendan Griffin: Táim fíor bhuíoch as ucht an seans labhairt ar an ábhar an-tábhachtach seo. The publication of the Criminal Justice Bill 2011, after about two months in office, epitomises the attitude of the new Government towards those who participate and assist white collar crime in this State. One of the major commitments in the programme for Government is to tackle white collar crime and by publishing the Criminal Justice Bill 2011 the Minister is leading the way in this battle. He deserves great credit for the swiftness with which he has acted on this matter. Garda investigative powers will be strengthened by this legislation and this will assist in delivering swifter justice in the area of white collar crime.
This legislation will clarify two issues relating to the investigation of crime generally, regarding the right of suspects in Garda custody to access legal advice prior to questioning, and the circumstances in which questioning may be conducted between the hours of midnight and 8 a.m. I welcome the inclusion in the Bill of provisions to suspend periods of detention of a person being detained in respect of a relevant offence. This is a very practical provision and will remove some impairment from the job of investigators.
Section 15 is one of the most important sections of the Bill. It provides a mechanism whereby an obligation can be imposed on witnesses, including companies, to provide information, answer questions and make statements in investigations into relevant offences. A District Court judge would be empowered to order the making available of particular documents or theprovision of particular information, order the identification and categorisation of documents, require Garda access to places where the documents are held and require access to passwords be provided. This is a crucial provision.
Section 16 contains another practical provision aimed at reducing delays associated with claims of legal privilege on documents. New offences of concealing facts disclosed by documents and of withholding information also give the Bill real teeth. During the course of the recent general election campaign, one issue that came up at many doors throughout the Kerry South constituency, and I understand from my colleagues throughout the 43 constituencies, was that of rogue bankers and those who misappropriate or embezzle funds. The people of this republic need to know that such people would be punished for their crimes and that they are not outside the law. Nobody should be untouchable.
I am confident that the provisions of the Bill will help deliver this desire for the people of this country. The Bill is a very welcome step towards zero tolerance of white collar crime, and it is a great pity that this legislation was not published long before now. I reiterate my congratulations to the Minister, Deputy Shatter, on his efforts on the Bill and I will be glad to support its passage through this House.
Deputy Peter Fitzpatrick: Scanning any local weekly newspaper, one can see a list of prosecutions for various offences. If an ordinary person breaks the law, he or she will most likely be prosecuted for the offence. However, white collar crime is an entirely different matter and sophisticated criminals generally making significant gains from crime are often not brought to justice. White collar crime gives rise to enormous discontent in the minds of ordinary citizens. How often do we hear somebody complaining about being punished for having no light on a bike but that the well-off get away with everything? That is a common perception that brings the law into disrepute, with the majority of citizens being disturbed by it.
Law-abiding citizens believe that people in important jobs often seem to be above the law and the collapse of our banks highlights this perception in a big way. Ordinary people were horrified when the banks were suddenly found to be bankrupt and they instinctively knew that bad things had happened. Nevertheless, they expected those responsible would be forced to answer for their activities, which had incredible consequences for the well-being of families and friends. People believed that the key players in the Government and in regulation, as well as the executive and boards of stricken banks, should take responsibility for the debacles.
There was an enormous financial disaster and the people expected the law to deal with it on their behalf, with those responsible singled out and punished. That did not happen and as a result, there was a crisis of confidence in our criminal justice system, with the assertion that some people are above the law being reinforced. There is major work in repairing the damage to people’s confidence in the criminal justice system.
This legislation is a step in the right direction. I congratulate the Minister for Justice and Equality, Deputy Alan Shatter, for moving quickly to improve the ability of the Garda to investigate white collar crime. The length of time spent investigating possible criminal activity in Anglo Irish Bank is an embarrassment, and the Director of Public Prosecutions has stated that lack of manpower is not the cause of unwanted delays and other factors are at play. The Minister has identified many of the problems which are preventing timely completion of this kind of investigation. This type of criminal activity is very difficult to unravel and the use of encrypted files and other methods of evasion used by persons who are educated in digital technology makes it very difficult to detect sophisticated accounting scams and other fraudulent activities. Those being investigated would naturally do everything possible to frustrate the efforts of the Garda.
Section 9 will allow the detention clock to be stopped for a maximum of three hours while a suspect waits to consult with a solicitor either in person or over the telephone. The clock may be stopped for a period of six hours when a suspect is in a Garda station between midnight and 8 a.m. This will allow the Garda to make maximum use of the detention period.
Section 15 gives the Garda the power to apply to the District Court for an order to compel a person to answer questions, provide statements and produce documents. This section also provides for the District Court to order access for the Garda to specified places for the purpose of obtaining documents and to provide access to passwords where documents are electronically stored. Suspects who fail to comply with a District Court order or who provide false or misleading information will be punished by the imposition of a fine, imprisonment up to two years or both. The section also contains a power relating to the method of presentation of documents as evidence.
Section 19 provides for a maximum of five years imprisonment or fine if a person is found guilty of withholding information relating to certain offences. The legislation will greatly assist the Garda in very difficult circumstances when trying to unravel sophisticated crime and I am happy to support it.
Speaking at the Irish Criminal Bar Association conference on white collar crime in March this year, the Minister stated his intention to ensure that our republic treats all citizens equally both when they abide by the law and breach it, and he argued that we must end the widespread perception of impunity. This Bill is an indication that the Minister means business.
The Minister must now move swiftly to bring the proposed whistleblower Bill before the House to further improve the prevention and detection of white collar crime. I hope that confidence in the system of criminal justice can now be restored and that the questions from the public on the failure of banks can be answered.
Is a Minister above the law in his duties? The same question arises with regard to the Government and board of the Central Bank and financial regulators. Many citizens believe these office holders cannot be investigated and prosecuted in the same way as other citizens. Some 450,000 people are now out of work——
Deputy Maureen O’Sullivan: I wish to share time with Deputies Healy, Wallace, Ross and Tom Fleming. I find the term “white collar crime” rather strange because in the psychology of colour, white is associated with innocence and goodness. It is strange to see “white” and “crime” in the same sentence. However, the amount of damage done to this country in the name of such crime is immense.
The question must be asked as to whether there is a need for this legislation or whether there is already enough to pursue those in the wrong. If we have the enforcement measures to deal with this type of crime, they are not being used to their full potential. It is a serious issue if legislation exists but it has not been used to go after those who caused irreparable damage to this country. That would be disgraceful.
There is a real perception in the country that those who were reckless in banking, finance, investment and business have gone unpunished while our prisons are full with those who have committed far lesser crimes. There is no doubt that there is a loss of faith in our criminal justice system, with the perception that those with money can get away scot free or relatively scot free. This will be compounded if it is proven, as some in the legal profession say, that there was enough in the Central Bank and Financial Services Authority Acts of 2003 and 2004 to use against those in the wrong.
The faith of the public will not be restored in the legal system if those who have done wrong continue to be seen to go unpunished and are left with their lavish lifestyles, multiple properties in a variety of names and offshore accounts. The issue of morality also arises in that they are not taking responsibility for their wrongdoing. The slow pace of the current investigations into the banking and financial wrongdoing is not helping to restore faith in the criminal justice system. It is accepted that white collar crime is often complex and involves large amounts of data, and the questioning and checking of facts cannot be completed as quickly as is the case for other crimes. It is hoped, therefore, that breaking the period of questioning into segments will facilitate investigations.
I note the sections of the Bill which give the Garda power to apply to the District Court for orders to compel witnesses to produce documents and provide passwords where the information is held on a computer. It is important, however, that investigating gardaí know what they are looking for. Will they be given the necessary training in accessing and categorising documents? The proposals in this regard have to work in practice as well as sounding good on paper. If Garda special units are not trained in the skills needed to deal with complex documents and analyse figures and accounts, the Bill will have little or no impact.
Section 19 provides for a new offence relating to the failure to report information to the Garda. Certain people have been reluctant to make statements assisting the Garda because we do not tell tales in this country. We need more telling of tales by people who are aware that wrongdoing has occurred, whether fraud, money laundering, theft, bribery or corruption. In the interest of justice, when people have the moral conviction to expose wrongdoing they have to be supported and protected if they fear repercussion. Legislation on protecting whistleblowers is needed and I note the call by Transparency International Ireland to adopt a generic whistleblower protection law which would cover whistleblowers in the public, private and non-profit sectors. In the absence of such protection, the existing provisions on whistleblower protection should be extended as an interim measure.
Anglo Irish Bank is unreasonably prolonging an investigation by claiming legal privilege, perhaps in the hope that the longer it is dragged out the less likely it is that it will lead to a significant resolution. It is hoped that the Bill will quicken the determination of privilege.
I will conclude with a practical point regarding original legal documents. I understand that if documents are signed and dated in blue ink they are more difficult to copy. Advantage could perhaps be taken of that potential in financial situations.
Deputy Seamus Healy: I welcome the opportunity to speak on this legislation. There is one law for the rich and another for the poor. For as long as I can remember that has been a fact as well as a perception. A poor person will be put behind bars for shoplifting to feed his or her family, whereas someone who does away with €1 million or €1 billion can look forward to escaping justice and enjoying a comfortable lifestyle either in Ireland or abroad in the UK, Europe or America.
I hope the Bill before us changes that situation and I welcome it for that reason. It has been a long time coming and it is not before its time. It is vital that we provide all the resources required to ensure the Bill is enacted and that the golden circle of bankers, politicians and business leaders who have brought this country and their professions into disrepute are brought to book. Specialist staff and training will be needed and financial and technical resources will have to be provided. Above all, the political will to implement and support the legislation will be vital. These resources will be necessary if the provisions of the Bill are not to end up as window dressing.
Deputy Mick Wallace: Dealing with white collar crime is an important initiative and the Government will impress if it is serious in dealing with this issue. There is no doubt that our mindset in this area needs to change.
The Irish Criminal Bar Association conference on white collar crime highlighted the range of legislative and regulatory measures already in place. Speakers at the conference maintained that the problem lies not so much in the inadequacy of legislation or regulatory schemes but in the lack of enforcement and resources. Will the Government make the necessary investment in resources and will it follow up with punishment to fit the crimes? State authorities must be funded because, God knows, the guys they will pursue are well resourced. The Garda has indicated that the bureau of fraud investigation is stretched to the limit and the Director of Corporate Enforcement is understaffed. If we are serious about this issue, we will have to provide the necessary resources.
White collar crime may not involve physical violence but it involves violence of another kind. Decisions made by high financiers often lead to severe hardships for thousands of people. Last night I watched a documentary by Mr. Adam Curtis which examined the Asian crisis of the late 1990s. It was amazing to compare that crisis with our current situation. Mr. Curtis demonstrated how the less well off in Thailand, Indonesia and South Korea were made to pay so that investors got their money back. We could be forgiven for being reminded of the events unfolding here.
As the Bill applies to consumer protection offences, it is relevant to raise the issue of home repossession. Since the advent of the downturn, more than 600 residences have been repossessed. It is possible that the rights of consumers, in terms of homeowners in mortgage arrears, have been violated by financial institutions applying to the courts for repossession orders. I thank Ms Golda Hession of the Library and Research Service for research on this matter. The legal advocacy group, New Beginning, is waiting for a decision from the High Court on the legality of house repossessions that were enforced on the basis of legislation that is no longer on the statute book. Section 62 of the Registration of Title Act 1964 was repealed by the Land and Conveyancing Law Reform Act 2009 but lenders continue to use this section to apply to the courts for repossession orders.
There is need for clarification on whether it is legal for financial institutions to use this section regarding claims made after 2009 in respect of mortgages created before 2009. Consumer protection offences certainly fall under the category of white collar crime.
Deputy Shane Ross: I congratulate the Minister on his swift decision to introduce long overdue legislation in this area. It is refreshing that even though this legislation is unnecessarily inadequate in its scope because the Minister has just taken up his position, it is welcome that he is attacking this problem. I temper that by pointing to areas which it does not but should address and which I would like him to address in his reply.
The first is insider dealing on the Stock Exchange. I was a Member in 1991 when legislation to tackle insider trading was introduced in the Seanad. Insider dealing on the Stock Exchange was recognised as a major problem. I was a member of the Stock Exchange at the time and a bad joke used to go around that there was no problem with insider dealing on the stock market because it was all insider dealing. That was true to some extent. It is difficult in Ireland because of the incestuous nature of the financial sector to stop any of that activity but once the legislation was introduced, people realised this was not a victimless crime. It was one we felt the necessity to legislate for because such activities were going on.
The problem now is there has not been a single conviction for insider dealing under that legislation, which has been on the Statute Book for 17 or 18 years. It is extraordinary that there has only been one prosecution and no conviction. It tells us that either nobody is engaged in this activity, which nobody believes, or the weapons or evidence to prove it is going on are not available. That says a great deal about the incestuous nature of the financial sector in Ireland.
Everybody will be familiar with the DIRT debacle, which the Committee of Public Accounts played such a great role in exposing. At the end of that episode, it was acknowledged that tax evasion was rife and almost endemic in society. Those who were accused of tax evasion by the DIRT inquiry were rightly prosecuted, shamed and fined because they had broken the law, but nothing happened to the bankers and financial institutions that had encouraged them to do so. AIB was fined £30 million and no individual in the financial services sector was fined, yet it was acknowledged by the DIRT inquiry and everybody else that the bankers and individuals in branches were responsible. However, the banks’ small shareholders paid the price because the banks were fined but the bankers were not. White collar crime in this instance went absolutely unpunished while the individuals who should have been punished were not. It was an unequal and unfair world.
Deputy Tom Fleming: I welcome this Bill to amend criminal law to expedite all investigative stages and lead to eventual prosecution in a prompt manner. We have experienced a wave of white collar crime in recent years and, due to the dismissive attitude to enforcing existing regulations — many who have transgressed have the wealth and the wherewithal to access top legal advice — many cases do not even make it to the steps of the courthouse. Even when there was ample evidence that the law has been seriously breached, light touch regulation, especially in the banking sector, was evident in the lead up to the banking crisis of 2008. Hopefully, the legislation will address weaknesses or loopholes in existing law. There should be more interaction, co-operation and liaison between the Revenue Commissioners and the Garda as part of this exercise. This should progress many prosecutions in a speedy manner.
In the context of the banking collapse, the Director of Public Prosecutions openly admitted recently in the High Court that nothing had been finalised in taking prosecutions and he also sought a six-month extension, which was refused by Mr. Justice Peter Kelly who rightly strongly criticised the farcical process so far. The DPP responded that it was not the judge’s function to comment on how he should prosecute cases. The Irish Examiner reported that Mr. Justice Kelly:
To describe such crime as white collar is a misnomer. Nobody should be categorised on the basis of the colour of their collars. These crimes are committed by professional plutocrats. I commend the Minister for introducing the legislation in a timely fashion and, hopefully, it will lead to greater things.
Ba mhaith liom mo bhuíochas a gabháil don gCeann Comhairle as ucht an deis labhartha ar an ábhar tabhachtach seo. Is ábhar tabhachtach é agus níl dabht ar bith ach go bhfuil suim faoi leith ag alán daoine i gcursaí atáá phlé againn anseo inniu.
As a newly elected Deputy, it is heartening that the Bill has been introduced, as it addresses a pressing issue for many of my constituents who are anxious that white collar crime be addressed by their Government. I compliment the Minister on the priority he has afforded this topic. The fact that he has brought the legislation before the House in the first 60 days of the Government is testament to the importance he attaches to the subject. This is an example of a proactive Parliament which is relevant and in tune with the wishes of the citizens. I, along with Members and many other candidates, encountered an electorate in the challenging recent election who were exceptionally interested and keen to engage with us as we canvassed on the doorsteps.
This reform is long overdue and has been brought about by the people themselves. Principal among the emotions expressed by the people I canvassed in west Cork were anger and frustration. They are obviously hurting and many are in severe financial distress. Irrespective of the people’s financial disposition and background, one common thread permeated all those who engaged me on the doorsteps and that was a desire to see justice being done in regard to those responsible for the financial crisis that has ruined our country. In such matters it is vital that not only must justice be done, but it must also be seen to be done. Nothing less will appease the genuine good and God fearing citizens of the State.
Responsibility is not transient by nature. It does not come and go but remains constant. The people who perpetrated financial crimes that led to or exacerbated the financial crisis that has ruined our economy are as guilty today as they were at any point during the past decade. As a Parliament, at the very least we owe it to the citizens of this country to introduce the measures proposed in the Bill to deal with white collar crime head-on.
A particular source of annoyance to the electorate I represent in Cork South-West, as does the Acting Chairman, Deputy Michael McCarthy, is how poorly we fare when comparisons are drawn between this State and the UK or the United States when it comes to dealing with white collar crime. From a cursory glance at headlines both in the UK and in the United States in recent years, it is clear that those countries are very well advanced when it comes to prosecuting white collar criminals. That only serves to further increase the annoyance and irritation felt by Irish citizens whose patience has run out with the failure of the State to deal with such matters.
It is clear from the reading of this Bill that there are several complex and difficult aspects to introducing this legislation particularly where it relates to white collar crime. I wish the Minister and the House every success in the passage of the Bill.
Deputy Jerry Buttimer: In the midst of economic turmoil, which at the very least jeopardises the sovereignty of the country and forces our citizens to work for many years to repay the losses caused by corporate greed, it is timely and opportune that the Minister should lay the Bill before the House. I commend him on that.
In recent years we have relayed tales of events which one would expect from a financial system which was unregulated and without any element of a social conscience, a system in which suspicious activities have been carried out by some of those in charge of financial institutions. In order to recover from the predicament not only must our economic situation be rectified but also those who are suspected of having partaken in criminal activities which have brought this peril upon the country must in the first instance at the very least be fully investigated. There must be accountability.
I welcome the Minister’s bravery and courage in proposing the legislation which provides for increased investigative powers. As Deputy Jim Daly indicated, many of our constituents have a view that those at the head of financial institutions are immune from prosecution. They see them fleeing the country to escape the consequences of their actions. They see them reaping bonuses from plundering the future of our children at a time when those same financial institutions pursue through the courts ordinary citizens who because they are now unemployed are struggling to pay their debts. It is wrong that the banks in particular are pursuing people. It is immoral and it must stop. Those at the head of our banking institutions who brought this economic peril upon our citizens must be held to account. There can be no ambiguity or obfuscation. There must be justice on behalf of the ordinary citizen. One of our duties as public representatives is to ensure that the State’s legal procedures and processes are just and equitable. Those processes do not appear to be either fair, equitable or just to the ordinary citizen and to many in this House.
In proposing the Bill the Minister is again fulfilling a commitment in the programme for Government to ensure that white collar criminals are held to account and to restore the faith of the people in an equitable system of justice. The Bill is timely, welcome and important. A white collar criminal is just like any other criminal and should be dealt with in the same way and with the same degree of efficiency. Just because physical force or violence is not used does not mean that people are not injured. They are injured. The white collar criminal is categorised by deceit and concealment. Such criminals perpetrate a breach of trust to gain personal or commercial advantage at the expense of those whom they exploit and also in the manner in which they exploit wider society.
The proposed legislation will help to make the investigation of white collar crime more efficient and effective. I hope its presence on the Statute Book will go a long way towards preventing a recurrence of the actions of bank executives in the main of which unfortunately we are now aware. It would be wrong to highlight just bank executives but given the current climate it is important that we refer to them. We note the words of the DPP and the Master of the High Court. The ordinary citizen requires Government and those in charge of the criminal justice procedures to act on their behalf. Not to do so would be wrong and would be a breach of the trust they have been given on behalf of the State.
Deputy Joe Carey: It should not go unnoticed that the first significant piece of criminal justice legislation introduced by the Government concerns white collar crime. This legislation sends out a clear message, that white collar crime will no longer be tolerated in this country.
Let us make no mistake, people’s tolerance of white collar crime is wearing thin. There are wider implications for the Oireachtas if we do not deal with it in a fundamental manner. Having campaigned in opposition as a deputy spokesperson on justice with the Minister for Justice and Equality, Deputy Shatter, I am conscious that he is acutely aware of the insidious nature of white collar crime and the overall impact it is now beginning to have on the justice system. I welcome the legislation, but view it merely as a point at which to begin. In parallel with and in conjunction to this type of legislation, we must ensure that no operational impediments are placed in the way of those agencies charged with the investigation of those offences. The new Government’s approach to the problem of white collar crime is in sharp contrast to the dismissive approach of the former Taoiseach, Bertie Ahern, who at one stage said in reply to the Director of Corporate Enforcement’s request for additional staff to tackle the problem in 2006 that he could wait his turn.
It is vital that specific legislative initiatives on the protection of whistleblowers are introduced. I welcome the commitment in the programme for Government in that regard. There is currently little provision for the protection of those who expose offences under company law or in the provision of financial services. We must both encourage and protect whistleblowers. Recently, the Director of Public Prosecutions, and the ODCE as far back as 2007, called for legislation to protect whistleblowers in cases of alleged white collar crime. The act of exposing corruption and financial crime is never easy. It is a lonely place for the individual who tries to address wrongs. One runs the risk of ridicule and estrangement. The very least one would expect is an acknowledgement from and the support of the State through its legislation and attitude at the initial stages.
The ODCE, the fraud squad and other bodies are drowning in paperwork and are not helped by a most restrictive legal situation. The Bill goes some way towards redressing the imbalance. There appears to be different schools of opinion on our ability to fight white collar crime. At a recent conference hosted by the Irish Criminal Bar Association, some of the country’s leading prosecutors questioned the need for new laws. I refer in particular to Shane Murphy, SC.
That cloudy interpretation must be addressed by the Government. The Criminal Justice Bill must be just the beginning of a process in which it ultimately becomes clear and unambiguous that the State will not tolerate those who act with impunity in relation to white collar crime. There is no doubt that the complexities of financial crime create a high challenge for investigators and prosecutors. Wealthy individuals and clever legal representatives are well able to exploit the current situation. Today’s legislation is a step, but only that, in the right direction.
Deputy Eamonn Maloney: I congratulate the Minister on the Bill. Both he and the Bill have been the subject of criticism. I plead that the Minister would totally ignore that because those who have spoken in that regard who have been Members of the House for many years have never introduced a single paragraph of legislation to deal with the issue. No doubt the Minister wishes to leave a legacy. I hope he will be remembered as the first Minister to deal with white collar crime in this country.
Like other Members I agree with the thesis that the problem is endemic. It always has been. I do not wish to say it is part of our culture but it is part of our bad habits. We are better at doing it than those who gave us our independence 90 years ago.
When people talk about white collar crime, I always think of the great American song-writer, Woody Guthrie, who wrote in one of his songs: “Some [men] will rob you with a six-gun, and some with a fountain pen”. We know from recent events in this small country that the men with the fountain pens have done a great deal more damage than those with six-guns. I do not have time for those with six-guns but I do wish to indicate the scale of the wrong done. It is estimated in the USA that for every $1 of social welfare fraud, there is $17 of white collar crime. I do not know the statistics here, but we may exceed that given some of the practices we have endured.
People from various sides have said they look forward to the day when those found guilty of white collar crime will be served with community service orders etc. I disagree, as I consider community service orders too good for people who have done the damage these people have done. There is no comparison between community service orders to gather litter from the streets for the architects of this downfall and community service orders for someone who has broken a shop window because of taking too much beer. That is not a fair analogy. There is a special place for those who have destroyed this economy and country.
In recent weeks we celebrated the visits of a Queen and a President to this country. The Minister will be next in line to be celebrated when people see on television people who have been involved in white collar crime being led into Mountjoy in handcuffs. We will then celebrate a Queen, a President and the Minister for Justice and Equality. I look forward to that and look forward to seeing on television those criminals in their white collars march into Mountjoy in handcuffs.
Deputy Dominic Hannigan: I welcome the opportunity to speak on the Criminal Justice Bill, a Bill the Government promised to introduce within its first 100 days in office. It has done that and aims to ensure the Bill is passed before the summer recess. Both sides of the House should work together to achieve this.
I intend to focus on the elements of the Bill that relate to white collar crime. The Minister said in his speech that there will be no impunity for those who engage in white collar crime. We must communicate this message to the people as it is a message they want to hear. People are fed up with the criminal justice system and see it as not fit for purpose when it comes to jailing criminal bankers and developers. They see an inequality of treatment between themselves and the bankers who have broken the law and ask why they should bear the brunt of austerity measures when rogue individuals face no consequences. I know this from e-mails I have received, from letters I have read and from people I have met on the doorsteps in my constituency. People ask why they are living in negative equity in unfinished developments while developers get off scot free and are not to be seen.
Approximately 500 people were imprisoned last year for not paying their TV licence, dog licence or parking fines. People have been brought to court for only being able to pay partial instalments of money they owe and families are being forced out of their homes because they have fallen on hard times, not of their own making. They see this happening against the backdrop of developers with huge debts fleeing these shores. They see them dragging out legal cases and see lengthy delays in bringing these people before the courts. They see billions of euro of taxpayers’ money being sunk into banks time and again. These banks lent recklessly during the boom and created the hard times, but people see no justice when it comes to tackling bankers. They saw bankers being brought into Garda stations for a day and saw the Garda go into a bank two years ago, but have seen no further development with regard to charging those bankers. All the people see are their wage packets being reduced as a result of the actions of these bankers. They see no justice at all.
During the general election, I was asked on the doorsteps again and again what we were going to do about this. I was asked whether we would pursue the bankers or let them escape. We stated clearly that we would tackle the issue and would make sure justice was seen to be done. It is right that we strengthen our laws. The people need to believe in their justice system. They need to know that it does not matter who one knows, how much one earns or where one lives, but that if people break the law, they will be pursued.
Deputy John Browne: I will share my time with Deputy Seamus Kirk. I welcome the Criminal Justice Bill, compliment the Minister on its early introduction and wish him well in his Ministry. It is not an easy Ministry, but I am sure the Minister will acquit himself well. I am sure the Minister will acknowledge the previous Minister, Dermot Ahern, undertook to implement this Bill before leaving Government and had prepared a text for the Bill and that many of his ideas are now part and parcel of this Bill. What is important is that the Bill is before the House and that it will deal with white collar crime once and for all. The public perception is that the people who commit white collar crime are treated far more leniently by the law than any other sector of society and people feel that a blind eye is turned to white collar crime and it is more or less ignored. White collar crime is as much a crime as all other crime.
During the recent general election campaign, issues such as the public sector pay cuts, the minimum wage and the universal social charge were raised on the doorsteps. However, a question asked on every doorstep was when people would see action against Anglo Irish Bank, bankers, regulators, legal eagles, accountants, mortgage brokers and politicians who, allegedly, were involved in the collapse of the banking system. The public is as mad as hell that high fliers from the banking world are to be seen swanning around Europe and American, holidaying in their villas and mansions, while no action has been seen to be taken against them. We all accept that the wheels of the law move slowly but surely the investigation should move forward with greater urgency.
We had a situation recently where both Mr. Justice Peter Kelly and Mr. Justice Frank Clarke commented on the pace of such investigations. I accept the Anglo Irish Bank investigation is probably the largest ever in the history of this country but with the manpower and modern technology available to our justice system, it should be possible to expedite the investigation and ensure that justice is done. The public will accept nothing less.
We all accept the complexities of white collar crime. People involved in such crime are usually the privileged. They are well off and can employ top accountants and legal eagles to represent them and delay procedures against them. Hopefully, this Bill will deal with the issues which have caused such annoyance for the public and we will see those who commit white collar crime brought before the courts more quickly and dealt with accordingly. People have often remarked to me that people who commit a petty crime, such as stealing a tube of toothpaste from Dunnes Stores, are brought to court within a month, but it takes months to deal with people allegedly involved in white collar crime. I am glad the Bill contains a number of provisions, which will be examined further below, and which are related to the following key areas: detention for questioning; the requirement to make a statement; documentary evidence; legal privilege; and withholding information. In view of this it is laudable that the Bill is before us.
I wish to make a few points on detention for questioning. The existing law whereby a person may be detained for questioning by the Garda for a specified period will be amended to allow the period of detention to be broken into segments and the person released in the intervening periods. The Garda will be able to detain and question an individual for part of the period, release that person while the Garda makes further inquiries into what was said and then require the individual to return to the Garda station at a later stage for the continuation of his or her detention. Will there be adequate Garda manpower to carry out such detention for questioning? The extent of data and the complexity of recent investigations have shown that it is not always possible to complete questioning and check facts in one period of detention. A person recently asked me what safeguards the Bill will provide to ensure that a person will return and not abscond during his or her period of release and I ask the Minister to deal with that issue.
There has been reluctance for potential witnesses to make statements assisting the Garda in its current investigation. The Bill provides a mechanism whereby an obligation can be imposed on witnesses to provide information, answer questions and make statements on investigations into relevant offences. The Bill provides for applications to the District Court by the Garda Síochána for orders requiring the production of material or the provision of information, which is a welcome section and I hope it will deal with some of the problems that have arisen in this area in recent times.
During recent investigations, large numbers of documents have been provided to the Garda without any effort to index the material or to certify the material in a manner that would allow their admissibility in court as evidence without the need for witnesses to prove them. The sheer volume of documentation to be sifted has been a source of delay. Solicitors and barristers have often raised the issue of delays owing to large amounts of documentation. One will often see boxes upon boxes of documentary evidence being wheeled into the court. I welcome that the Bill provides that where the District Court orders the production of material under that section, it may order the person to identify and categorise the material in a particular manner. This provision should speed up the process and ensure that people do not use this as an excuse.
When the Garda proposes to seize large quantities of documents, access to documents can be severely delayed by claims of legal privilege. The Bill provides that where a person refuses to disclose a document to the Garda Síochána or to allow possession of it to be taken pursuant to a District Court order on the grounds that it is privileged legal material, an application may be made to the District Court for a determination as to whether the document is privileged legal material. While I welcome this provision, I hope that the courts will not allow ongoing delays in this area and we will not have further delays. The Minister stated that this procedure should help to avoid unnecessary delays in the resolution of claims of legal privilege. However, there can also often be delays in the District Court and I wonder whether this will happen or whether we will have ongoing legal points of law that may also hold things up.
I welcome the provision in the Bill on withholding information. The Bill provides that no questioning of a person detained may take place until such time as he or she has access to legal advice. While this is only correct, we would hope that there will not be unrealistic delays in this area. Up to now the Garda has adopted a reasonable approach to this and I am sure that will continue. I hope the access to legal advice will happen quickly and we will not have undue delays with people waiting for legal advice.
Overall I welcome the Bill. It is interesting that Mr. Justice Peter Kelly recently commented that an apparent failure to investigate thoroughly yet efficiently and quickly possible wrongdoing in the commercial and corporate sector did nothing to instil confidence in the criminal justice system. Mr. Justice Kelly is rightly saying that we should ensure the legislation we have is properly implemented. When the Minister, Deputy Shatter, was on this side of the House he was very critical of ongoing delays. Mr. Justice Peter Kelly is also referring to what seem to be ongoing delays and when replying the Minister might outline whether there are ongoing delays, particularly in the investigation into Anglo Irish Bank and whether it can be speeded up in the interest of the public, which is very annoyed that such delays are occurring on a regular basis.
Deputy Seamus Kirk: I welcome the opportunity to make a few remarks on this legislation. We on this side of the House are very pleased that the new Government has decided quickly to bring forward Fianna Fáil’s plan to deal with white collar crime. On the basis that the Bill proposed by the Minister, Deputy Shatter, remains true to our own proposals, we look forward to supporting it and helping its speedy passage through the Oireachtas.
The term “white collar crime” is now so deeply embedded in our legal, moral and social vocabularies that it cannot be abandoned. The main purpose of the Bill is to facilitate more effective investigation of white collar crime and to reduce associated delay. First and foremost, the former Minister for Justice, Equality and Law Reform and my constituency colleague, Dermot Ahern, announced that the then Government had approved the drafting of a white collar criminal Bill. Resulting from this is the Bill before us today. The Criminal Justice Bill of the Minister, Deputy Shatter, mirrors all of the key elements that were outlined by Fianna Fáil. A more collective approach in looking at the problem of white collar crime is needed across all parties in the House.
There are a number of elements of this Bill which we support, including the provision for detention for questioning. The existing law whereby a person may be detained for questioning by the Garda for a specified period will be amended to allow the period of detention to be broken into segments and the person released in the intervening periods. The Garda will be able to detain and question an individual for part of the period, release that person while the Garda makes further inquiries into what was said and then require the individual to return to the Garda station at a later stage for the continuation of his or her detention. The extent of data and the complexity of recent investigations have shown that it is not always possible to complete questioning and check facts in one period of detention. This element will be essential in future cases, aiding and assisting in investigations.
During recent investigations, large numbers of documents have been provided to the Garda without any effort to index the material or to certify the material in a manner that would allow their admissibility in court as evidence without the need for witnesses to prove them. The sheer volume of documentation to be sifted has been a source of serious delay. The Bill provides that where the District Court orders the production of material under that section, it may order the person to identify and categorise the material in a particular layout or manner.
On the issue of withholding information, a person who has information which he or she knows or believes might be of material assistance in preventing the commission by another person of a particular offence or in securing the apprehension, prosecution or conviction of another person for such an offence, and who fails without reasonable excuse to disclose such information as soon as practicable to the Garda Síochána, will be guilty of an offence. The offence is punishable by a fine and imprisonment for up to five years or both. A similar offence is contained in section 9 of the Offences against the State (Amendment) Act 1998 but it is limited to certain serious offences.
The Bill provides that no questioning of a person detained under section 4 of the Criminal Justice Act 1984 may take place between the hours of midnight and 8 a.m. other than where the suspect objects to the suspension of questioning or the member in charge authorises questioning on the grounds that a delay would involve a risk of injury to other persons; serious damage to property; loss of, or interference with, evidence; accomplices evading, etc. It will continue to be the case that the period during which questioning is suspended will be excluded from the calculation of the detention period.
I welcome the publication of the Bill. It will lead to more effective investigation of white collar crime and reduce associated delays. It has become increasingly clear that Bills on which Fianna Fáil has done the groundwork are appearing under the current Government. This needs to be recognised and identified as a core element of the work the previous Government did in various areas.
This Bill has deep-rooted similarities with a number of other Bills, including the Criminal Justice (Community Service) (Amendment) Bill 2011, published by the Minister for Justice and Law Reform during this Dáil session and which is pretty much identical to the Criminal Justice (Community Service) Bill published by the former Minister, Mr. Dermot Ahern, in January 2011.
We all welcome the current Minister’s initiative in bringing forward this legislation. It is urgent. All we have to do is examine newspapers of recent months and years to identify clearly the urgent need for the legislation. It is welcome and we support it. We wish the Minister well. This is the first opportunity I have had to congratulate him on his appointment. We knew each other in a previous incarnation. I am particularly pleased he has begun what is a heavy job of work in his Department. We wish him well in that Department.
Minister for Justice and Equality (Deputy Alan Shatter): I thank the Deputies on all sides of the House for contributing to this debate and for what could correctly be described as the broad support for the measure contained in the Bill. I listened with interest to Deputies Kirk and Calleary and others from Fianna Fáil. It is correct that the previous Government started some work on this measure but this work was by no means complete. The Bill was not in a position to be published when we took office. Very substantial additional work was undertaken on the legislation as a priority following the formation of the new Government. A contribution to that work was also made by the new Attorney General. Without the work that was undertaken and the prioritisation of the measure in a manner in which it had not been prioritised by the previous Government, the measure would not be before the House at this stage. Having said that, I appreciate greatly the support expressed for the Bill by all Deputies who spoke. I thank them for their generous comments and for their good wishes. As this Dáil proceeds into later weeks and months, perhaps the good wishes from the Opposition side of the House will not be quite as lavish but they are appreciated nevertheless.
I want to make one specific comment on this Bill. If I reiterate a point I made at the start of Second Stage, I apologise. The Bill is laying down a very serious marker that there will be no impunity for white collar criminals. There are individuals who have engaged in conduct that is the subject of Garda investigation and consideration by the Director of Public Prosecutions. If the latter is satisfied their conduct is unlawful, I hope criminal proceedings will be initiated. It is understood on all sides of the House that the Minister for Justice and Law Reform must be very careful as to how he expresses himself with regard to issues of criminality in the context of the investigative and prosecutorial processes and, more particularly, as to what may occur when individuals come before the courts. It is of the greatest importance that nothing be said that could in any way prejudice a prosecution or which could be relied upon by those who come before the courts to try to avoid being brought to justice.
It is worth saying there are some in our community who have engaged in criminality of a kind in respect of which the time has certainly come, if not passed, in which they should exchange the cufflinks for handcuffs. There is a great deal of frustration inside and outside this House over the time it takes to investigate white collar crime. This Bill is designed to facilitate those investigations and to ensure that maximum co-operation is available to the Garda Síochána in the provision of information and documentation and with regard to the obtaining of preliminary court orders so as to advance the speed of investigations and render it more difficult for others to obstruct them.
It is my hope and expectation that this Bill will be of significant value in the investigation and prosecution of future white collar crime and that it will be of assistance with regard to current investigations. The Government, however, will not sit back and simply tick off white collar crime from its agenda once the Bill is enacted. It will continue to examine how the law can be made more effective to ensure white collar criminals cannot act with impunity. In that respect, it will keep the provisions of the Bill under continual review.
Let me turn to comments made by some Deputies. I hope those to whom I will not refer will forgive me if I do not deal in detail with each speech we heard in this House on the Bill. I want to lay down an additional marker by saying the contributions made by each Deputy, on every side of the House, have been listened to carefully and will be scrutinised carefully prior to the commencement of Committee Stage. In so far as there are good ideas coming forward that may improve the Bill, we are open to listening to them and taking them on board. I look forward to constructive exchanges in this regard on Committee Stage. I hope during the course of my response, which will be brief and conclude at 7 p.m., at which time I hope we will conclude Second Stage, to address some of the concerns and issues that have been raised.
Let me address specific points raised by Deputy Calleary. He asked that the various regulations to be made under the Bill be available for scrutiny by the House during its passage. That is not normal in this House and has not occurred in the past with regard to criminal law legislation, save in very exceptional circumstances. My priority is to have the Bill enacted as soon as possible. I do not want to delay its passage to await the drafting of regulations. Nevertheless, I assure the House that work is commencing on the regulations that will be required to bring the Bill into operation. I do not want any Member to believe that, by commencing that work, we are taking anything for granted with regard to the various Stages through which the Bill must pass, but it is wise that the process commence. The last thing I want is for many months to go by after the Bill’s enactment before it becomes operative.
Should any of the regulations we are working on become available during the passage of the Bill through the House, I will make them available, but I cannot guarantee it will be possible. Some of the regulations will be quite technical — for example, those relating to the giving of written notice to a person whose detention is being suspended.
Deputy Calleary expressed concern that my proposals in regard to the right of detained persons to have access to legal advice would not be used to delay questioning and frustrate the efforts of the Garda Síochána to obtain information. I share the Deputy’s concern and that is why my proposal to specify in legislation that the questioning of detained persons is, as a rule, to be delayed until such time as the person has had an opportunity to consult a solicitor is accompanied by a stop-the-clock provision and a regulation-making power. The stop-the-clock provision and the procedural steps to be set out in the regulations to assist the Garda in facilitating what is an important constitutional and European Court of Human Rights right, and to do so in a speedy manner, are intended to work together to ensure the purpose of the detention cannot be frustrated and the investigation of the offence concerned hindered in any way.
Deputy O’Brien queried the provision in the proposed new section 5B contained in paragraph (a) of section 9, which deals with access to legal advice and which provides that a failure on the part of a member of the Garda Síochána to observe any provision of the regulations shall not of itself, and I stress those words, affect the lawfulness of the custody of the detained person or the admissibility of any statement made by him or her. This is a standard provision. There are numerous examples on the Statute Book, not least in section 7 of the Criminal Justice Act 1984, the Act in which section 5B is proposed for insertion.
The purpose of the provision is simply to ensure that a technical breach of a regulation by a member, for example, not completing a form properly, does not automatically render the detention unlawful and any statements made inadmissible as evidence. It leaves the matter to the discretion of the trial judge to determine whether the nature of the breach is of such magnitude that it constitutes a breach of the detained person’s constitutional right of access to legal advice and should therefore be excluded as evidence.
It is desirable there is full adherence by members to any regulations. Subsection (5) of section 5B conveys this message. It provides that any failure on the part of a member to observe any provision of the regulations shall render that member liable to disciplinary proceedings.
In the context of other issues raised with me, I reiterate what has been said previously. Both the Garda Síochána and the Office of the Director of Corporate Enforcement have confirmed that they have the resources they require for the investigations currently taking place. One of the first things I did on my first day in the Department of Justice and Equality was to raise that issue as a query and arrange for officials of my Department to meet with the Garda Síochána and the Director of the Office of Corporate Enforcement to ascertain whether any additional resources of any nature were being sought from us with regard to the work being undertaken. In so far as there were additional resources required, I understand they were provided and we have reiterated that if any additional resources are needed, they will be provided. Interestingly, over the weekend the Director of Public Prosecutions indicated that as far as he was concerned his office had whatever resources he needs.
It is my understanding that the investigations that are taking place have made substantial progress but while the Government does not have a role in prosecuting offences, we will take all appropriate action open to us to ensure the investigations are brought to a conclusion as quickly as possible.
In the context of the queries raised relating to whistleblower legislation a number of Deputies expressed concern about that. There is an absolute commitment in the programme for Government to introduce a new whistleblowers Bill. In so far as it has been suggested there may be need for some additional whistleblower measure in this particular legislation, I am having that matter examined. I cannot make a commitment that would include it in this legislation because it is envisaged in Government that there will be a separate and substantial whistleblowers Bill but I do not want this legislation delayed pending the enactment of that Bill. It may be possible to incorporate some discreet provision relating to the issue of whistleblowers in the context of us dealing with Committee Stage. If that proves possible, I will bring forward an appropriate amendment.
Reference has been made to various speeches. There have been two different conferences. A lawyers’ conference was organised in recent weeks to deal with the issue of white collar crime. I spoke at one of those conferences, and indeed opened one, and made a presentation to it slightly in advance of the publication of this Bill giving a general outline of the areas we were addressing. There was a headline in one of the following day’s newspapers which stated that someone else who spoke at the conference had said there was no need for additional law reform. In fact, the newspaper got it wrong. What was said at the conference by the particular speaker, and it has been repeated in the House, is that we have very substantial laws in regard to white collar crime but in terms of the context of the substance of the laws, what we need to do is apply them and implement them.
At that conference there were calls for the type of legislation I have introduced in this House. A number of people have said there is a need for a change in the procedural approach to white collar crime within the courts structure and a need to provide additional assistance to the Garda Síochána. Essentially, the provisions contained in this Bill reflect what has been called for with regard to the reforms that are necessary. It is important to differentiate between the substantive law in place and the new law that will be enacted following the passage of this Bill, which will greatly facilitate the investigations of white collar crime.
Deputy Ross made a number of points. I agree with him on one point. We have very substantial laws with regard to insider dealing in the stock market. It is not for me as Minister for Justice and Equality to pronounce whether an individual or any individuals have been guilty of insider dealing. It would be highly inappropriate for me to do so but the laws are in place. The expertise exists within the Garda Síochána to investigate matters should there be a belief that people have behaved in a manner which warrants a criminal investigation. If that investigation does occur, there should be no doubt but that the provisions in this Bill would also be of substantial assistance in gaining access to information, be it held in documentary or electronic form.
I thank Deputy Ross and the other Independent Deputies who contributed in such a positive way to this debate and who raised issues which were important to discuss. I was surprised by Deputy Ross’s suggestion that those who may be found guilty of white collar crime should be sentenced to community service, and he called for some change in the law. The reality is the community service legislation applies across the board to people who commit all sorts of crimes, be they white collar or not. I would share the view expressed by Deputy Maloney that in the context of the seriousness of the nature of the crimes in the white collar area and in so far as they have had a substantial impact on the economic well-being of this country, the economic circumstances of individuals or contributed to the 440,000 unemployed, I personally would not regard community service as an adequate penalty for the sentencing of those guilty of serious white collar crime.
I come back to where I started. With regard to those found through our courts guilty of serious white collar crime, rather than doing community service they should exchange the cufflinks for handcuffs. There is a sentencing system. Ultimately, it is for the courts to determine how they apply sentences but there is a need to ensure that the punishment fits the crime. White collar crime, as we know, can have devastating impacts and I was surprised that Deputy Ross, who has been waxing lyrical for a while about the banks despite the fact that he was something of a cheerleader for Mr. Seanie FitzPatrick and Mr. Fingleton during the early 2000’s and despite the fact that he was urging the other banks to follow their banking practices which, tragically for all of us, they did, should now suggest that if someone is prosecuted arising out of the banking scandals it would be a good idea that they do community service. Some of the people he has been so vocal criticising would, if they found themselves before the courts and convicted, be very happy to only have to do community service.
I will conclude by thanking again everyone who spoke in the debate. It is correct that in particular I express my thanks for the support I received from my own colleagues in Fine Gael and in the Labour Party. I thank everyone on the other side of the House also. I would hope that we will be able to commence Committee Stage of this Bill rapidly at the justice and defence committee upon the committees being formed and our being in a position to proceed.
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