That leave be granted to introduced a Bill entitled an Act to provide for the establishment of the Office of Fiscal Prosecution, to provide for the investigation and prosecution by the Office of Fiscal Prosecution of cases of certain offences and, for that purpose, to enable proceedings relating to such cases to be taken expeditiously, to provide for criminal and civil enforcement and to provide for matters incidental upon the establishment of the Office of Fiscal Prosecution and the establishment of a European public prosecutor and a European delegated prosecutor with other related matters.
The Bill contains a list of scheduled offences, the prosecution of which is slightly amended by it, and it also provides for civil enforcement in parallel. The list of offences relates 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 and crimes related to the raising and collection of taxes and duties. It is about the more serious offences which relate to these. The Schedule is similar to that in the Criminal Justice Act 2011. The Bill provides for mandatory imprisonment in the case of conviction for these offences. Currently, on summary conviction or on conviction on indictment, discretion is available in respect of whether to fine or imprison offenders. The EU-IMF bailout document suggests that there is an insufficient deterrent to corporate crime, particularly when summarily prosecuted.
Section 5 provides for the establishment of an office of fiscal prosecutor headed by the director of fiscal prosecution, and they will be tasked with investigating these scheduled offences. I am not convinced that the current regime is sufficient to investigate or prosecute corporate crime. We have witnessed high-profile prosecutions but the offices involved in them have publicly stated that all their resources were used to pursue these investigations and I am concerned that if corporate crimes are being reported to the Garda, be it in the Leas-Cheann Comhairle's constituency of Galway East or in Clare or Limerick, the force does not have the resources or the capability to investigate them. As we are about to rise for Easter, I am reminded of the funeral sequence in "The Godfather II", which took place at that time. One character says, "One lawyer with a briefcase can steal more than 100 men with guns". I am not convinced that our criminal justice system has the capability to investigate and prosecute corporate crime.
Section 11 provides that the relevant offences may be tried in the Special Criminal Court where the circumstances required by Article 38.3.1° exist and that is because subversives within the State and organised crime gangs are moving from the street to corporate crime, as the Mafia did in the US. This was celebrated in the film to which I referred.
The legislation also provides for a civil enforcement procedure where there is suspected non-compliance with statutory duties. This does not create any new legal duties but it provides for an enforcement mechanism to ensure existing statutory duties can be enforced more expeditiously and, upon the completion of civil proceedings, a person who has failed to comply with the statutory duty may be ordered to pay a sum to a third party under an order of restitution. The purpose of this is remedial in order that the damage caused by corporate crime can be remedied. That would be a huge deterrent because unlike other crimes which may be motivated by passion and so on, corporate crime is simply motivated by greed and it should be made easier to take the ill-gotten gains from such crimes from offenders without them suffering an additional penalty. An additional penalty would be unconstitutional because of the Supreme Court's decision in the Melling case, which involved the smuggling of butter, a long time ago. Nevertheless it set the benchmark for what criminal and civil prosecutions are allowed. This provision would mean offenders would lose the ill-gotten gains of corporate crime.
Section 19 ensures a person may be made liable for the debts of a company upon the application of the director of fiscal prosecution in certain circumstances where the person has knowingly used the company to accrue debts he knew could never by repaid. Throughout Ireland, tradesmen in the construction sector, in particular, have been stung by companies when people used the protection of the company law structure to knowingly accrue debts that could not be repaid. Ordinary people do not have the financial wherewithal or time to have the so-called corporate veil lifted to impose personal liability on those who wrongfully use companies in this regard. This is not about people who get it wrong in companies. It is about people who knowingly use companies to accrue debts they know cannot be paid back. That does not serve our economy well. It is unjust and remedies must be provided. The Bill is an attempt to do that.
The legislation finally provides for a public consultation on a merger with the Office of the Director of Corporate Enforcement. If the office of the fiscal prosecutor is introduced, it would be beneficial after a specified period to examine how it is working and how it interacts with existing mechanisms, which are not working properly.