I move: "That the Bill be now read a Second Time."
The programme for Government is unambiguous in its commitment to the principle that the white collar criminal must be made amenable for his or her crime. As Minster for Justice and Equality, my top priority is to restore the faith of the Irish people that this principle will be as vigorously applied to white collar crime as it is to all other crime. Justice delayed is justice denied.
This Bill is an important step in delivering on the Government's strong commitment to tackle white collar crime. It was our intention to publish this Bill within the first 100 days of Government. We achieved that aim when the Bill was published last Friday. Our next step in delivering on our commitment is to have this Bill enacted and on the Statute Book as a matter of priority. I hope the Opposition Deputies will co-operate to facilitate its enactment before the summer recess. In this respect, I am grateful for the co-operation I have been afforded here in allowing me to bring this Bill before the House today.
A fundamental principle of criminal justice is that the person who commits a crime should be brought before the courts and made accountable. The faith of the Irish people in that principle as applied to financial wrongdoing has been severely tested in recent times. There is widespread concern that the investigation and prosecution of white collar crime in this country is taking too long. There is no doubt that the complexities of financial crime create a high challenge for investigators and for prosecutors. However, we must find ways to ensure that no matter how complex the crime, no matter how important, wealthy or influential the wrongdoer may be, he or she must be brought before the courts. I have one simple and straight forward message. There will be no impunity for those who engage in white collar crime.
The main purpose of the Criminal Justice Bill 2011 is to address delays in the prosecution and investigation of complex crime by improving certain important procedural matters and strengthening Garda investigative powers. The proposals in the Bill are based on the experiences of those involved in investigations and prosecutions of white collar crime, and in particular on the experiences of those involved in current investigations into bank fraud and financial irregularities. My intention is to ensure that the new procedures and powers set out in the Bill will speed up future investigations and prosecutions. However, it is also my intention that the provisions of the Bill will be available to investigators to speed up major investigations currently underway.
The Bill is being targeted at specified serious and complex offences attracting a penalty of at least five years imprisonment, including offences in the areas of banking and finance, company law, money laundering, fraud, corruption, competition, consumer protection and cybercrime. Before I turn to the details of the Bill's provisions I would like to briefly outline its main proposals.
The Bill provides for a new system to make more effective use of detention periods. This will allow persons arrested and detained for questioning by the Garda Síochána to be released and their detention suspended so that further investigations can be conducted during the suspension period. A central provision of the Bill is the new power for the Garda Síochána to apply to court for an order to require any person with relevant information to produce documents, answer questions and provide information for the purposes of the investigation of relevant offences. Failure to comply with such an order will be an offence. Also provided for are measures relating to how documents are to be produced to the Garda. These measures are aimed at reducing the delays associated with the production of large volumes of poorly ordered and uncategorised documents to the Garda in the course of its investigations.
The Bill also contains measures to prevent unnecessary delays in investigations arising from claims of legal privilege. In addition, it provides for presumptions in respect of documents which will streamline the admission of evidence. It also provides for the creation of a number of new offences, including an offence similar to the former misprision of felony offence, which relates to the failure to report information to the Garda. This particular offence is of major importance, as its creation in the Bill will ensure that those who become aware of persons engaging in white collar crime are under an obligation to bring what they know to the attention of the Garda Síochána.
I am also taking the opportunity presented by the Bill to clarify two issues relating to the investigation of crime more generally. The issues relate to the right of suspects in Garda custody to access legal advice prior to questioning and the circumstances in which questioning may be conducted between midnight and 8 a.m.
I now turn to the detail of the main provisions of the Bill. The Bill is being targeted at certain complex white collar crime. Section 3 provides for the scope of the Bill. Its provisions, other than the provisions relating to the investigation of crime generally, will apply to offences referred to as "relevant offences". A "relevant offence" means an arrestable offence specified in the Schedule, or as the Minister may specify by order. An arrestable offence is an offence punishable by imprisonment for five years or more. The offences in the Schedule include theft, fraud and corruption offences, as well as company law, banking and other financial offences. The offences which may be specified by order of the Minister are offences relating to banking, investment of funds and other financial activities, company law, money laundering and financing terrorism, theft and fraud, bribery and corruption, competition and consumer protection, crime relating to electronic communications networks and information systems and the raising and collection of taxes and duties.
The Minister must consider that the powers under the Bill are, by reason of the nature of the arrestable offence concerned and the prolonged period of time that may be required for the investigation of such offences as a result of the complexity of such investigations, necessary for the investigation of that offence. The Minister must consult with any other relevant Minister before making such an order.
The proposals in Part 2 include a new system to make more effective use of detention periods. The complexity of recent investigations and the volumes of documents involved have shown that it is not always possible to complete questioning and check facts in one period of detention. The suspension of detention provisions, provided for in section7, are being applied to the 24 hour maximum detention period permitted under section 4 of the Criminal Justice Act 1984. The amendments will allow the period of detention under section 4 of the 1984 Act to be suspended and the person released during the period of suspension. The purpose of these provisions is to allow the Garda to follow up on information obtained during questioning and conduct further investigations during the suspension period.
Section 7(a) inserts six new subsections into section 4 of the 1984 Act. The new subsection (3A) allows the Garda to suspend the detention of a person being detained in respect of a relevant offence, where there are reasonable grounds for believing that it is necessary for the purpose of permitting enquiries or investigations to be made for the further and proper investigation of that offence. Subsection (3B) provides that a person’s detention may be suspended on no more than two occasions. The total time for which a person’s detention may be suspended must not exceed four months from the date of the first suspension. The person must return to the Garda station at the date and time specified in the notice given to him or her under subsection (3C) or at such other date and time or Garda station, as may be notified under Subsection (3D).
Subsection (3C) provides that the person concerned must be given notice in writing that his or her detention is being suspended, of the Garda station and of the date and time on which he or she must return for the continuation of the detention, and of the consequences of failing to return. The effect of the notice must be explained to the person orally by a Garda. Subsection (3D) provides for the issuing by a Garda inspector of a notice changing the return date and time or Garda station to which the person must return.
Subsection (3E) provides for the continuation of a person's detention on his or her return to the Garda station. It also provides for the person's release where the member in charge of the Garda station concerned no longer has, at the time of the person's return, reasonable grounds for believing that the person's continued detention is necessary. Subsection (3F) clarifies how suspension of detention will operate in cases where the person is detained for another offence or the detention is continued of subsection (5 A) of section 4 of the 1984 Act in respect of another offence.
Section 8 follows up on the provisions of section 7 and mainly deals with the consequences for a person who fails to return to a Garda station after the period of suspension has expired. Section 8 inserts new sections 4A, 4B and 4C into the Criminal Justice Act 1984. Section 4A provides that a person who fails to return to a Garda station for the continuation of a period of detention which was suspended may be arrested without warrant and returned to that station. The period of time commencing on the person's arrest and ending on his or her arrival to the Garda station concerned will be excluded in reckoning a period of detention permitted under section 4 of the 1984 Act. Section 4B provides for an offence of failing to return to the Garda station concerned. Section 4C provides for a regulation-making power for the procedures to apply to the suspension of detention.
I now would like to turn to the questioning of persons in Garda custody between midnight and 8 a.m. If I may, I will refer back to paragraph (c) of section 7. The provisions in section 7 which I outlined introduced a new procedure on suspended detention and they are limited to relevant offences. On the other hand, paragraph (c) of section 7 relates to existing detention procedures under section 4 of the 1984 Act and to the investigation of crime more generally. It will apply to all persons detained under section 4 irrespective of the offence concerned. It amends section 4(6) of the 1984 Act in order to clarify the circumstances in which such persons may be questioned between midnight and 8 a.m. As a consequence of this amendment, the norm will be that no questioning will take place between these hours other than where the detained person objects to the suspension of questioning in which case questioning will continue or the member in charge of the station authorises questioning for exceptional reasons relating to the particular circumstances of the case. The circumstances required to justify the giving of such an authorisation are specified and include a reasonable belief on the part of the member that to delay questioning until the following morning would involve a risk of injury to other persons, serious damage to property or interference with evidence. A possible scenario that comes to mind is where a person is detained in connection with a kidnapping that is still in progress and where there is concern for the safety of the victim.
Any period that is suspended will be excluded from the calculation of the detention period. This is already the case under the 1984 Act and I am continuing this approach as to do otherwise would greatly reduce the amount of time available to the Garda to question a person detained under section 4. Deputies will recall that the maximum period of detention permitted under that section is 24 hours.
I will now address the right of detained person to access legal advice. Section 9 contains further amendments to the 1984 Act which are of general application to persons detained under section 4. The amendments concern the well-established right of a person in Garda custody to access legal advice and are aimed at clarifying the circumstances in which questioning may proceed notwithstanding that the suspect has not yet had an opportunity to consult with a solicitor. It is, of course, generally Garda practice to delay questioning to facilitate such consultations. However, recent jurisprudence of the European Court of Human Rights emphasises the importance of detained persons having, as a rule, access to legal advice in advance of questioning. Exceptions are permitted but they must be based on compelling reasons arising from the circumstance of the particular case. In order to ensure that laws are fully compliant with our obligations under the convention and have the degree of certainty required it is necessary to clarify this matter in legislation.
Section 9, paragraph (a) inserts two new sections in the Act — sections 5A and 5B. Section 5A contains the general rule that questioning of detained persons is not to proceed pending access to legal advice. Two exceptions are permitted: where the person waives his or her right to consult or where the member in charge authorises questioning. Deputies will note that the test that must be met before such an authorisation can be given is identical to that which will apply to the questioning of persons between midnight and 8 a.m. to which I have already referred. Again, the member must have reasonable grounds for believing that to delay would involve a risk of one of a specified list of circumstances arising. The list includes injury to other persons, serious damage to property, interference with evidence, etc.
I am providing for the detention clock to stop subject to a maximum period pending a solicitor making him or herself available for a consultation. This provision is necessary to deal with the difficulties encountered by the Garda in contacting available solicitors, for example, in rural districts, or at weekends. I am satisfied that the maximum periods proposed, three hours for the most part but up to six hours in some circumstances between midnight and 8 a.m., strike a reasonable balance between the rights of the detained person and the needs of the investigation of crime. As is already the case, a consultation may be in person or by telephone. In either event, it must take place in private although this may be in the sight of but out of the hearing of the Garda for security reasons.
Section 5B provides for ministerial regulations on procedural matters concerning access to solicitors. The proposed regulations will assist the Garda authorities in implementing arrangements to facilitate the right of detained persons to access legal advice. These amendments refer to persons detained under section 4 of the 1984 Act. It is, of course, important that they also apply to persons detained under our other statutory powers, such as section 30 of the Offences against the State Act and section 2 of the Criminal Justice (Drug Trafficking) Act 1996. This is achieved by paragraph (b) of this section and by sections 13 and 14 of this Bill.
In conclusion on the matter of access to legal advice, I would draw to the attention of Deputies the amendments in paragraphs (c), (d) and (e) of section 9 and in sections 10, 11 and 12. These amendments concern the various provisions on the Statute Book which allow inferences adverse to an accused to be drawn in criminal proceedings from his or her failure or refusal, for example, to answer certain questions asked by the Garda during an investigation. The amendments make it clear that in order for an inference to be drawn in proceedings the accused must have had access to legal advice, other than where he or she waived that right.
I now want to turn to provision of documents and information to the Garda. Returning to the issue of white collar crime, experience with recent investigations has shown that investigations can be hampered by the reluctance of some potential witnesses to make statements or otherwise provide information to the Garda Síochána. Part 3 contains new powers to compel witnesses to provide documents and information to the Garda to assist in the investigation and prosecution of complex crimes.
Section 15 provides that a garda may apply to the District Court for an order for the making available by a person of particular documents or the provision of particular information, whether by answering specified questions or making a statement setting out the answers to those questions. The District Court judge must be satisfied that there are reasonable grounds for believing that the document or information is relevant to the investigation of the relevant offence concerned, there are reasonable grounds for suspecting that it may constitute evidence of or relating to the commission of that offence and, finally, that there are reasonable grounds for believing that the document or information should be provided, having regard to the likely benefit to the investigation and any other relevant circumstances.
Where the judge orders the production of documents, he or she may order the person to identify and categorise them in a particular manner. This provision should help to reduce the delays associated with the disclosure of large volumes of poorly ordered and uncategorised documents to the Garda in the course of its investigations.
An order providing for access to documents in a specified place may require a Garda to be allowed to enter the place to obtain access to the documents. Provision is made for access to passwords where the documents concerned are in non-legible form, for example, electronic documents on a computer. It should be noted that the order does not confer any right to production of, or access to, any document subject to legal professional privilege. However, the order has effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information.
Provision is made for the retention by, or return to, a person of documents where the documents are required for the purposes of a person's business or other legitimate purpose. The person must undertake in writing to keep the documents safely and securely and when requested, to furnish them to the Garda in connection with any criminal proceedings for which they are required. Documents taken away by a garda under section 15 may be retained for use as evidence in any criminal proceedings.
These provisions are targeted at witnesses, not suspects. Accordingly, to preserve the right against self incrimination, a statement or admission made by a person pursuant to an order under section 15 is not admissible as evidence in proceedings against the person for an offence, other than an offence under the section itself.
A person who fails or refuses to comply with an order under section 15 is guilty of an offence. Provision is also made for an offence of providing false or misleading information or statements. A person who fails to comply with an undertaking given by him or her under this section is guilty of an offence. The offences will be punishable by unlimited fines and up to two years imprisonment or both.
Access to documents by the Garda Síochána can be severely delayed by claims of legal privilege which give rise to applications to the High Court. Section 16 contains provisions aimed at reducing such delays by making provision for determining legal professional privilege issues which arise in District Court orders under section 15 requiring the disclosure of documents to the Garda.
Under the new provisions, where a person refuses to disclose a document or give access to it pursuant to a court order under section 15 on the grounds that it is privileged legal material, the Garda or the person concerned may apply to a District Court judge for a determination as to whether the document is privileged legal material. Pending the determination of the application, the person concerned is obliged to preserve the document and keep it in a safe and secure place. The District Court judge may also give interim or interlocutory directions, including, in a case involving a substantial volume of documents, the appointment of an experienced, independent person with legal qualifications to examine the documents and prepare a report for the judge with a view to facilitating the court's determination as to the documents. Rules of court may make provision for the expeditious hearing of applications and appeals under section 16.
Section 17 provides for an offence relating to the falsification, concealment or destruction of documents relevant to a Garda investigation into a relevant offence. The offence is punishable by an unlimited fine and imprisonment for up to five years or both.
Section 18 provides for certain evidential presumptions to arise where documents are admitted as evidence in proceedings for a relevant offence. It provides for presumptions on the creation, ownership, receipt and other matters relating to documents. These presumptions may be rebutted by the defendant. This provision is important to streamline the way in which requirements in relation to evidence can be met concerning documents submitted in complex white collar crime cases.
Section 19 provides for a new offence, similar to the former misprision of felony offence, which relates to the failure to report information to the Garda. The offence will apply to a person who has information which he or she knows or believes might be of material assistance in preventing the commission of a relevant offence or in securing the apprehension, prosecution or conviction of another person for such an offence. A person 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 an unlimited 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 in that Act it is limited to certain serious offences.
Section 20 is a standard provision regarding offences by bodies corporate.
The Schedule sets out the offences which will be "relevant offences" for the purposes of the Bill. A number of additional offences are being further examined in consultation with the Department of Enterprise, Trade and Innovation and the Department of Finance to assess whether they meet the criteria for inclusion in the Schedule to the Bill. If it is subsequently decided that they meet the criteria, I propose to add them to the Schedule by way of Committee Stage amendment, if time permits. An alternative approach is, of course, to add any qualifying offences to the Schedule by way of order made under the Bill after it is enacted. I described at an earlier point the capacity of the Minister to make such orders.
I am introducing this Bill quickly to deal with issues that are currently causing problems and delaying or potentially delaying the investigation and prosecution of white collar crime. It is an important step in ensuring that the white collar criminal will be vigorously pursued by the authorities of the State.
The Government is of course committed to addressing all aspects of white collar crime and my proposals go beyond the measures to be contained in the Criminal Justice Bill. The programme for Government contains a commitment to enact legislation to strengthen the powers of the Criminal Assets Bureau on the forfeiture of the proceeds of crime. The Criminal Assets Bureau now has 15 years practical experience in the operation of the proceeds of crime legislation. That experience will inform the work of an expert group, comprising representatives from the bureau, my Department and the Office of the Attorney General, which is reviewing the operation of the legislation with a view to identifying measures that would further strengthen the law in this area.
The subject of white collar crime has also been a key component in the White Paper on crime process under way in my Department. It was addressed specifically in a consultation seminar held late last year along with a discussion document and a call for written submissions. A wide range of detailed submissions were received and these have provided important insights into this complex issue. A report on the submissions received has been published recently and many of the issues raised are being targeted in this piece of legislation. More generally, the input received will feed into the deliberations leading to the White Paper itself.
The ultimate objective of the White Paper process is to provide a comprehensive framework for future crime policy, in the form of a national anti-crime strategy. If this framework is to have credibility and protect society in the broadest sense, it is vitally important that it addresses white collar crime as well as so called "street crime".
We must put an end to any hint of a culture that suggests that the white collar criminal is a protected species. In this Bill, I am proposing to give the Garda and the prosecutors the powers, and to provide for the procedures, that they have told me are necessary to help them to investigate white collar crime and to bring prosecutions more efficiently. I am committed to removing any sense that the white collar criminal can act with impunity. In that respect, today I make a promise to the Irish people that if more is needed, more will be done.
I have absolutely no doubt that everyone in the State wants to ensure that where there is criminality, in particular in the context of white collar crime, investigations are facilitated to be undertaken with speed and as comprehensively as possible and that, where required, prosecutions are initiated at an early stage. I am aware of substantial public concern at the length of time being taken in completing some of the very important investigations that are currently under way. Enactment of this Bill would provide additional assistance following its enactment to gardaí conducting any investigation that is current at the date of this Bill coming into force. It is for that particular reason that it is of crucial importance that the Bill is fully considered by the House, and for that reason it is being prioritised by the Government.
As I stated at an earlier point, I hope for and look forward to the assistance and co-operation of Deputies opposite in the processing of this measure through both Second and Committee Stages. I will state publicly on the record of the House what I stated privately to the Opposition spokespeople on justice, which is that when it comes to Committee Stage, in so far as constructive amendments are proposed that could improve the workings of the Bill and which can be accommodated within it, we will give very serious consideration to amendments proposed by Deputies opposite on Committee Stage.