I welcome the Minister back to the House. He has been with us on a number of occasions recently.
Criminal Justice Bill 2011: Second Stage
I seem to have set up residence here. I apologise for being a few moments late. We had a very lengthy final Cabinet meeting earlier today.
It was a final meeting.
It was our final meeting before the summer recess. I hope it will not be our final meeting altogether.
I am pleased to present the Criminal Justice Bill 2011 to the House. I am grateful that the Seanad is sitting this week in order to facilitate the taking of this particularly important measure. It is urgent that the Bill be enacted.
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 people that this principle will be as vigorously applied to white collar crime as it is to all other crime. Justice delayed is, of course, justice denied.
The Bill is an important step in delivering on the Government's strong commitment to tackle white collar crime. 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 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 major challenge for investigators and prosecutors. However, we must find ways to ensure that no matter how complex the crime and no matter how important, wealthy or influential the wrongdoer may be, he or she must be brought before the courts. I have one simple andiistraightforward message — there will be no impunity for those who engage in white collar crime.
With the co-operation of the House, I hope the Bill will complete its passage through the Oireachtas before the summer recess and that it will be brought into operation shortly after enactment. The main purpose of the Bill 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 in order to speed up major investigations under way. 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 discuss the details of the Bill's provisions, I will briefly outline the main proposals it contains. First, 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 to be released and their detention suspended in order 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.
The Bill also contains 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 contains other measures to prevent unnecessary delays in investigations arising from claims of legal privilege. In addition, it provides for presumptions in respect of documents. This will streamline the admission of evidence. Furthermore, the Bill provides for the creation of a number of new offences, including an offence similar to the former misprision of felony offence. The latter relates to a failure to report information to the Garda. The Bill contains provisions to protect employees from penalisation for disclosing information to the Garda relating to relevant offences.
I am also taking the opportunity presented by the Bill to clarify two issues relating to the investigation of crime more generally. These 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 the hours of midnight and 8 a.m.
I will now deal with the detail of the Bill's main provisions. The Bill is being targeted at certain complex white collar crime. Section 3 provides for the scope of the Bill. Its provisions, other than those 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 Schedule 1 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 Schedule 1 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 those 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, crimes in respect of 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 that may be required for the investigation of such offences as a result of the complexity of the matters to be investigated — 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 of the Bill 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 section 7, is 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 to be 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 to conduct further investigations during the suspension period.
Paragraph (a) inserts six new subsections into section 4 of the 1984 Act. 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 considering it necessary to do so for the purpose of permitting inquiries 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 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 under subsection (5A) of section 4 of the 1984 Act in regard to another offence.
Section 8 follows up on the provisions of section 7 and deals mainly 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 in regard to the procedures to apply to the suspension of detention.
I will now refer back to paragraph (c) of section 7. The provisions in section 7 which I outlined introduce a new procedure in regard to suspended detention and are limited to relevant offences. In contrast, the amendment in paragraph (c) of section 7 applies to all persons detained under section 4 of the 1984 Act, irrespective of the offence concerned. It amends subsection (6) of that section in order to clarify the circumstances in which such persons may be questioned between midnight and 8 a.m.
As a consequence, 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 authorises questioning for exceptional reasons relating to the particular circumstances of the case. The circumstances required to justify 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 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. As is already the case under the 1984 Act, any period that is suspended will be excluded from the calculation of the detention period. 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. The maximum period of detention permitted under section 4 is 24 hours.
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 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 must be based on compelling reasons arising from the circumstances of the particular case. In order to ensure our laws are fully compliant with our obligations under the European Convention on Human Rights and have the degree of certainty required, it is necessary to clarify the matter in legislation.
Paragraph (a) inserts two new sections in the Act. Section 5A contains the general rule that questioning of detained persons is not to proceed pending access to legal advice. Two exceptions are permitted, namely, where the person waives his or her right to consult or where the member in charge authorises questioning. The test that must be met before such an authorisation may be given is identical to that which will apply to the questioning of persons between midnight and 8 a.m. 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 and so on.
I am providing for the detention clock to stop subject to a maximum period pending a solicitor making himself or herself available for a consultation. This provision is necessary to deal with the difficulties encountered by the Garda in contacting available solicitors in, for example, 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.
Section 5B provides for ministerial regulations in regard to 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 important that they also apply to persons detained under other statutory powers such as section 30 of the Offences against the State Act 1939 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 the Bill.
The amendments in paragraphs (c), (d) and (e) of section 9 and in sections 10 to 12, inclusive, 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 questions asked by gardaí during an investigation which clearly call for answer. The amendments make 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 has waived that right.
Returning to the issue of white collar crime, experience with recent investigations has shown that inquiries can be hampered by the reluctance of some potential witnesses to make statements or otherwise provide information for the Garda Síochána. Part 3 of the Bill contains new powers to compel witnesses to provide documents and information for gardaí 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 there are reasonable grounds for believing that the document or information is relevant to the investigation of the relevant offence concerned, that there are reasonable grounds for suspecting that it may constitute evidence of or relating to the commission of that offence and that there are reasonable grounds for believing 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 Síochána in the course of 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 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 Síochána 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 regarding District Court orders under section 15 requiring the disclosure of documents to the Garda Síochána.
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 Síochána 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 of 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 Síochána. The offence will apply to a person who has information that 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 it is limited to certain serious offences.
Section 20 makes provision for the protection of employees who disclose information to the Garda Síochána about relevant offences as required by section 19, to ensure that such persons will not suffer penalisation in the workplace. The section prohibits an employer from penalising an employee for making a disclosure to the Garda Síochána about a relevant offence, for giving evidence about that disclosure in any proceedings for a relevant offence, or for giving notice of his or her intention to do so. The section contains a broad definition of penalisation, which includes any act or omission of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment. The definition also lists specified instances of such acts or omissions. Complaints about an alleged contravention of section 20 can be presented to a rights commissioner in accordance with the procedure set out in Schedule 2.
Section 21 provides for a number of offences relating to section 20. It will be an offence for an employee to make a disclosure to the Garda Síochána about a relevant offence knowing the disclosure to be false or being reckless as to whether it is false. It will be an offence for an employer to penalise an employee in contravention of section 20.
Section 22 is a standard provision regarding offences by bodies corporate. Schedule 1 sets out the offences that will be relevant offences for the purposes of the Bill. If it is subsequently decided that additional offences meet the criteria for designation as relevant offences, they can be specified as relevant offences by way of orders under section 3. Schedule 2 sets out the procedure for presenting complaints relating to alleged contraventions of section 20 to a rights commissioner and the Labour Court. I have signed an order to bring into effect a measure to assist juries in their deliberations in complex theft and fraud trials.
The discussions at the recent Irish Criminal Bar Association conference on white collar crime, at which I gave the opening address, made an important contribution to the ongoing debate on how we can find better ways to tackle white collar crime. The paper delivered by Shane Murphy SC at the conference brought to my attention the fact that section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001 had not been commenced.
Theft and fraud trials can involve the presentation of extensive evidence about company accounts, complex financial transactions and convoluted money trails. Section 57 of the 2001 Act allows for various documents such as charts, diagrams and summaries of evidence to be given to juries in such cases. This will allow jury members to review key aspects of evidence in a simplified manner and enhance their ability to reach just and fair decisions. Section 57 was not commenced previously due to concerns about potential technical and cost difficulties in producing documents such as evidence summaries and transcripts. The installation of digital audio recording systems in courtrooms has addressed some of those concerns. In light of these improvements, but also due to the fact that the cost of producing such documents is far outweighed in serious fraud cases by the need for justice to be done, I have made the necessary commencement order to bring section 57 into operation with effect from 1 August. This is another important step in tackling white collar crime. For too long, the complexity of evidence in fraud trials has been allowed to stand as a barrier to effective prosecutions. Along with this Bill the commencement of section 57 of the 2001 Act will strengthen the hands of the Garda Síochána and the Director of Public Prosecutions in their work to investigate and prosecute white collar crime.
I have brought forward the Criminal Justice Bill quickly to deal with issues that are causing problems and delaying or potentially delaying the investigation and prosecution of white collar crime. It is an important step in ensuring the white collar criminal will be vigorously pursued by the authorities of the State. We must put an end to any hint of a culture that suggests that the white collar criminal can act with impunity. In this Bill, I propose to give the Garda Síochána and the prosecutors the powers they have told me are necessary to help them investigate white collar crime and to bring prosecutions more efficiently. The Bill will make an important contribution both to current and future investigations. It is of the utmost importance that the State is seen to have the capacity to fully and properly investigate all alleged instances of white collar crime and that our prosecuting services are able to process to prosecution stage files they receive detailing circumstances which lead to a conclusion that a crime has been committed for which a prosecution should ensue.
In the context of the banking issues that have arisen there is a huge concern among the public that the investigations being undertaken are completed as early as possible and that, in so far as any criminality is revealed, prosecutions ensue. It is my belief that in so far as there have been delays as a consequence of the Garda finding that witnesses were non-co-operative or those under investigation were not providing the co-operation necessary to facilitate the investigation, in so far as the Garda may have been obstructed in any way in accessing crucial documentation or information electronically held, this Bill, when enacted, will be a vital cog in the armoury of the Garda Síochána to facilitate successful outcomes to such investigations. It will in the future be seen to be an important part of our criminal justice architecture.
I welcome the Minister to the House. This side of the House will be supporting this legislation. We recognise that prior to his departure the outgoing Minister, Dermot Ahern, had done some work in this important area and that the Minister is proceeding swiftly in dealing with it, on which I compliment him.
Unfortunately, there is a perception that people, be it those in the legal profession such as my own and that of the Minister, accountants, those involved in assurance, and those in banking can, as the saying goes, "get away with murder" in certain instances. There is a view among the public that white collar crime has gone largely unnoticed and unpunished. That is something we must set aside clearly and unequivocally.
We also resonate with the idea that with the collapse of our banking structure and the economic crisis of the past three years starting in 2008, many ordinary people were hurt and affected by lack of regulation and control. There is a perception also that many of those involved appear to have got away with it.
The Minister made public comment regarding the investigation into Anglo Irish Bank where a large number of documents and disks were taken from the bank's premises. I understand an investigation is under way by the Garda, and I wish it luck in that regard, but it seems to be taking a very long time. When the Minister was on the other side of the House he commented on the lack of progress and I hope that with this new legislation or even without it — there is existing legislation — this matter can be pursued vigorously.
I pose a question to the Minister in good faith. Is he confident that the investigating branch of the Garda has sufficient capacity to deal with this convoluted area of law? I am not being disingenuous but I hope it has because this is a new, complex area. It is like the drug squads. Thirty years ago drugs were unheard of in Ireland but the drugs gangs got more efficient, sophisticated and lethal and the Garda had to meet that sophistication in its investigations.
An old country and western song came to mind recently when somebody told me that their house was repossessed. They said it was a fine thing that the banks robbed them with a gun but some lines in that old song stated:
Mr. Jones, the horse you sold me was not all that I desired.
You swore it was young and healthy, but now I know it's old and tired.
Mr. Jones, I'd like you better if you robbed me with a gun.
That is the perception, namely, that people have been robbed and wronged.
On the important aspects of the Bill, I welcome the breaking up of the detention period. It is a new advent and it is important that a suspect can be questioned for, say, four hours, released and be brought back six weeks later for another four or six hours of questioning as may be required. In the intervening period gardaí can collect other materials to help them carry out their investigation and resolve the crime. That is important and I welcome it.
The other aspect concerns the making of a statement. It is important that when a person uses the right of silence and does not make a statement or co-operate with the Garda the Minister has provided that an application can be made to the District Court by the Garda for orders requiring the production of material or the provision of information. I presume the Minister sees going to the District Court as a swift mechanism to deal with that problem. I presume also that an application to the District Court can be made instantaneously 24 hours a day, seven days a week if it is urgent. That is my understanding of the position.
On the documentary evidence, similar to the Anglo Irish Bank situation where huge volumes of documents were removed, I understand from the provision in this legislation that an onus can be put on the people from whom the information is being taken to have it coded and indexed in a particular way rather than simply bundling it together because it can take the Garda weeks, months and sometimes years to put all the pieces of the complex jigsaw puzzle together. That is an important provision.
On the area of legal privilege, somebody stated that the claim for legal privilege is sometimes used to delay and deter an investigation and so forth. This proposed legislation puts an onus in that regard on a person who refuses to disclose a document to the Garda or to allow possession of it to be taken pursuant to a District Court order. The legislation also imposes certain severe penalties if there is a lack of co-operation.
The Minister is also introducing a new Part with regard to the withholding of information. In that regard, such an offence, if it is proven, is punishable by an unlimited fine, imprisonment for up to five years or both.
The Minister referred to questioning between the hours of midnight and 8 a.m. In the case of a person detained for 24 hours, they get tired after eight or ten hours. The notion is that in so far as possible, questioning of a person would cease from midnight to 8 a.m. the following morning. In that regard, I presume the clock would stop to allow the person get a few hours sleep, have something to eat and start the questioning again the following morning at 8.15 a.m., refreshed and not tired when the clock would start again for the remaining period of the questioning. That is something I would welcome. I would welcome also if that could be broadened in other areas of the law.
With regard to certain serious crimes — those of subversives, for example — one can be detained for a maximum of seven days. Such legislation applied in the United Kingdom at one stage. I lived there in the 1970s during a bombing campaign by the IRA. At the time people disembarking from boats and planes, including me, were taken in and questioned for very innocuous reasons. While I understand the serious purpose of the legislation, the period of detention of 24 hours for a crime so sophisticated as white-collar crime could and should be extended. Perhaps the Minister will consider extending the statutory period to 48 or 72 hours for certain exceptional and complex circumstances. This is a very complex area and perhaps we could consider it in future legislation.
The Minister touched upon a very important legal provision, namely, the right to legal advice. When one is held in custody for relatively minor crimes, such as drink driving where there is no accident, one is normally entitled to consult a solicitor, if one wishes. In saying this, I am not detracting from the seriousness of some road traffic accidents. The right to consult a solicitor is a constitutional right rather than a right established under precedent and statute.
In this regard, the Minister stated that the Bill makes provision for the detention clock to stop subject to a maximum period pending a solicitor making himself or herself available for the consultation. This is important because I have heard of gardaí ringing around at 3 a.m. in the hope of finding a friendly local solicitor to visit the Garda station to give legal advice. Most solicitors, unless they are very young and eager, would prefer not to receive such a call. I have had to drag myself out of bed on occasion. I can understand the Minister's view that the clock should be stopped. There are periods in the week during which the clock has to be stopped. It is important to take this into account.
The Minister referred to the recent Irish Criminal Bar Association conference and to what Mr. Shane Murphy, SC, said. I concur and find it hard to believe that the relevant provision in the 2001 Act was never invoked. I am glad the Minister set the clock ticking in this regard. Both Mr. Shane Murphy, SC, and Mr. Dominic McGinn, SC, stated clearly in their submissions at the conference that there is an abundance of existing laws and regulations that could be better used. While this legislation is important and while buttressing is required in so far as this is possible, I ask whether enough use is made of existing laws and regulations, including in respect of the Anglo Irish Bank investigation, for example. Did we use properly the laws already in place? If not, why not? I would hate to see a recurrence of their not being used.
I, too, welcome the Minister to the House. I refer to Senator O'Donovan's final comment on the implementation of existing law. I look forward to the Minister's response to the Senator's observations.
A huge premium is placed on the number of Bills the Seanad passes every year. In the past two or three years in particular, a major complaint of Senators has been that they have spent much of their time discussing reports and making general observations instead of passing legislation, the reason being that legislation has not come from the other House. We, as politicians, must be careful in trying to strike the correct balance. It is not necessary for a parliament or country to pass legislation continually. Obviously, new laws are required in response to new circumstances but we should not be judged solely on the amount of legislation brought forward. We must ensure that laws that have been passed, not necessarily by the Minister but by his predecessors, are implemented to the full. It is in this regard that I look forward to the Minister's response to Senator O'Donovan's comments. We need to ensure time spent passing legislation results in every section and nuance thereof being utilised fully.
That said, I appreciate the urgent need for the Bill before us. I note it was published on Friday, 13 May. I presume that date will prove unlucky for some. I acknowledge the Minister wants the legislation implemented as soon as possible and will not be delayed by the House.
There is a view among the public that white collar crime is not treated as seriously or vigorously as it should be. We debate all sorts of criminal offences in this House, including social welfare fraud, which is now a very popular topic, and our constituents complain to us that certain sectors of society are getting away with offences. White collar crime is in this category. On foot of the Minister's vigorous efforts, the Bill will change this.
This legislation is being introduced at a time when the economy and our society are struggling to recover from the banking crisis and economic difficulties caused by bad commercial decisions. It is appropriate that we try to put in place a mechanism that will ensure that we will set the highest possible standards for business and commerce, and that certain decisions, which sometimes verged on being criminal, particularly in the banking industry, will not be repeated. Economically, the country cannot afford a repeat of some of the dreadful decisions that were made. The Criminal Justice Bill 2011 is sending from the Government the strongest possible signal that not only better standards but also the highest standards of propriety will now be required.
I refer to a matter raised by Senator O'Donovan, that is, the investigative expertise of the Garda. The Bill is not designed to assist in the investigation of hit and run accidents, thefts in the local supermarket or even more serious crimes such as murder but will provide for, or assist with, very precise, intricate investigations. Will the Minister comment on the level of expertise?
For some years, there has been an embargo on recruitment. Is the Minister satisfied we have available the expertise for the specialised police investigations required to pursue these offences?
I very much support the main provisions of the Bill, which introduce changes to the suspension of detention periods. This is practical and should be of significant assistance. It is a common sense measure and we could ask why it has not been done previously.
The issue of withholding information is important. It is interesting to debate this section because we are beginning to comment on the withholding of information in many areas of society. In recent weeks, the Government discussed the Cloyne report and the withholding of sensitive information was very much at the core of its concerns. The Bill is removed from this area of concern, but the law on the withholding of information must be clarified and codified in a more strident fashion. I note what the Minister stated in this regard.
The law covering the provision of documentary evidence is very important given what the Minister is attempting to do in the Bill and the complex nature of what will be under investigation. We must place a strong onus on those persons obliged to provide paperwork and documentary evidence to do so in a way which will be at least not unhelpful and, it is hoped, helpful.
The provision of strong and tough law which people realise will be implemented is one part of the equation. The other part is that our emphasis must be to try to set higher standards. The country cannot recover, jobs will not be created, the economy will not be turned around and our younger people will not have a future unless business succeeds. We must aim to have the ethos and standards of business at the highest possible level. Our colleague, Senator Quinn, put in place a marvellous business which had the very highest standards. We must send out the message that commercial and business success can be achieved side by side with high standards. However, when these standards are broken measures such as this Bill will be required and must be implemented. We need the carrot and stick. This is not about penalising business. The House and the Government must support and encourage business, commerce and entrepreneurs. However, we must also have checks and balances and the Bill is appropriate in this regard.
I welcome the Minister to the House and thank him for introducing the Bill. I appreciate Senator Bradford's generous comments.
For many years, we have debated and called for legislation to protect whistleblowers. The new Bill will protect whistleblowers from dismissal or from being penalised in the workplace. The Minister is taking a much needed tough stance on white collar crime. Clearly, the need for this has been identified.
The Bill means it will be offence to not provide information for the Garda on complex white collar crime. I wonder whether this will be enough. Is it possible to provide another incentive for those who are sitting on the fence on whether to report, which must happen? In the United States, the Dodd-Frank Wall Street Reform and Consumer Protection Act requires the Securities and Exchange Commission to award in certain cases to qualifying whistleblowers no less than 10% and no greater than 30% of the total monetary sanctions collected because of the whistleblower's information. This is in cases where the government gets back more than $1 million when there is a disclosure. The fundamental idea behind the whistleblower reward programme in the United States is to encourage people to come forward.
It is evident that many working in the financial sector were aware things were wrong before the crisis hit. Even in the months leading up to the collapse of Lehman Brothers, that institution's vice president, Matthew Lee, tried to whistleblow on the firm's accounting methods. His contract was terminated some weeks later, in June 2008. In Ireland there have been many examples of bankers or those working in the financial sector whose careers were severely affected when they raised concerns about malpractice in the company. The simple fact is that sometimes these are the only people in a place to highlight such abuses and we need to do everything we can to protect them and to incentivise reporting.
I do not hold that we need a vast financial reward scheme as part of the whistleblower legislation, but it is a measure worth considering. Some form of reward may tip the balance for those who have doubts about whether they should report financial wrongdoing. Also, a reward would probably be a tiny percentage of the significant financial benefit of reporting certain wrongdoing in the financial sector. More people may come forward with their concerns if we have better protection for whistleblowers, but perhaps they should be rewarded more for doing what is often a remarkably risky act.
It is interesting to see the amount of work that goes into a regulatory impact analysis. This could have an extraordinary impact on the business community. How will auditors treat offences under section 197(3) of the Companies Act 1990 when a director or an officer of the company fails to provide an auditor with relevant answers within two days of being requested to do so? An accountant and auditor could find themselves reporting to An Garda Síochána on a very regular basis, in particular with regard to section 202 on the keeping of books and records. I am concerned that very few directors take their duties and responsibilities seriously and we have seen many instances of this. I wonder whether An Garda Síochána has the resources to deal with all of the reports that will be required to be made under this new white collar crime legislation. For this reason, we should consider an amendment to the Bill to improve protection for creditors generally. The Bill has slipped under the radar of the business community, accountants and other persons who may have to blow the whistle. I intend to table an amendment on Committee Stage.
When this legislation is enacted, a raft of persons such as bookkeepers, accountants, financial controllers, company employees, solicitors, barristers, estate agents, bankers, company secretaries and more than 500,000 company directors will have a duty to disclose a breach of any of the relevant offences listed in Schedule 1. Company directors do not know company law as they should and it has been broken for many years. Company law is approaching its 50th birthday and is a complete dog's dinner comprising 15 individual pieces of legislation which very few understand. Now, under section 19 of the Criminal Justice Bill 2011, at least 12 new sections of company law will be reportable to the Garda. Accountants, bookkeepers and auditors in particular will need to upskill immediately in this area as they will be sitting ducks for failure to comply with the professional standards of their own professional bodies, and will probably be those most at risk from prosecution under section 19 as they will have the most information. Those who work at the coal face in this area claim these laws are broken every day and nobody does anything about it, including the Office of the Director of Corporate Enforcement, ODCE. The office and the Garda fraud squad do not have the necessary resources to deal with corporate crime, notwithstanding that the Garda Commissioner and Mr. Paul Appleby have repeatedly stated that they have sufficient resources. The ODCE has 37 staff along with members of the Garda but they would probably need 370 or 3,700 people to deal with non-compliance with company law and, in particular, the whistleblowing provisions in the Companies Acts. If all the relevant persons blow the whistle, as they are required to do pursuant to section 19, then the ODCE and the Garda fraud squad will need significant resources, including skilled investigators, to review these new mandatory reports. That is a challenge but the Minister has taken the correct steps and is going in the right direction. I wonder whether we have the resources to do it.
I refer to mandatory electronic surveillance in State owned banks. Who superintends the electronic archival records of Departments in choosing what documents to keep? I would also like an outline of the Government's plans for the digitisation of archives in the future. What else can we do to protect against white collar crime? Given that the banks are owned by the State, can the introduction of more safeguards become mandatory in them to make sure the taxpayer is properly served? At a time when paper documents have almost been made redundant and electronic communication has increased significantly, we must examine new ways to make sure that wrongdoing is not covered up. One research firm, Forrester, says that some corporate e-mail archives are increasing by more than 40% a year.
Information technology companies specialise in e-discovery, the practice of examining electronic records to unearth important data and relationships. In one notable case in the US, a link was found between several executives at a firm who had been issuing bogus invoices to inflate its revenues thanks to such software. That is not unlike the case of Anglo Irish Bank whereby members of the board ended up buying shares in the bank to inflate its value. Given that so much trust has been lost in the banks, should the Government not insist on mandatory surveillance software like this in the banks, especially given its stake in them? K&L Gates, a law firm has stated that the recession increases the risk that rogue employees will be tempted to engage in wrongdoing to protect their jobs or bolster their finances. It would be worthwhile to make provision for e-discovery software to be used in banks.
The Minister is heading in the right direction but I have concerns about several areas and I urge him to examine them.
I wish to share time with Senator Hayden.
I welcome the Minister who is a regular visitor to the House. I also welcome the provisions in the Bill to address white collar crime seriously. In a way it has not been dealt sufficiently seriously previously. As Senators Bradford and O'Donovan acknowledged, there is a perception among the public, in particular, that those engaged in white collar crime, particularly in the banking sector, have been getting away with it for too long. There is concern that it should be dealt with seriously and it is welcome that we are doing so. I also welcome the commencement of section 27 of the 2001 Act, which, as the Minister said, should have happened before now.
There is concern about the lack of prosecution arising out of what happened in the banking sector and, in particular, INBS and Anglo Irish Bank. As Senator Quinn mentioned, there is a sense that reckless bankers went on a testosterone fuelled lending spree, which resulted in the false foundation of the boom and the subsequent collapse, with disastrous consequences for the economy. The bank guarantee introduced by the previous Government in September 2008 made a bad situation worse by converting private debt into sovereign debt, which resulted in the IMF having to intervene. The Government seeks to deal with the consequences of that in a context not of its making. Earlier on the Order of Business, there was a cross-party welcome for the reduction on the interest rates on the bailout loans and the renegotiation that took place last week. None of us in government chose to be in this position. Sinn Féin was highly critical earlier but we will not take lectures from that party on this because we are trying to deal with the consequences of what went on and we need to be able to pay for public services, which is the bottom line.
There is immense public worry about what will come down the tracks in the budget. All of us are also concerned about that. More than 400,000 people are unemployed while those who are working face job losses and pay cuts. The worry would be easier to cope with if there was a sense of justice being done at the top level and that is why we are debating this legislation. The Minister referred to a perception of delay in dealing with those who engaged in reckless lending. Clearly, some of that was not criminal but where criminality took place, prosecutions should result. I have discussed this with other criminal lawyers and prosecutions should be brought under section 10 of the Criminal Justice (Theft and Fraud Offences) Act 2001 for false accounting. This provides for an offence, which appears to have been committed. Simpler offences such as that could be prosecuted more swiftly than the complex corporate offences that are also under investigation arising from the actions of the banking sector.
While the Bill seeks to strengthen procedures for dealing with white collar crime, existing laws could have dealt with such crime before now. They have not been used enough. Part of the problem has been a lack of enforcement and the absence of a culture in which white collar crime was taken as seriously as street crime. The legislation contains welcome provisions, particularly that relating to whisteblowing. That was added on Committee Stage on the Dáil. The Minister acknowledged that the programme for Government contains a commitment to introduce more comprehensive legislation on whistleblower protection in the medium term. I do not know whether he can outline the medium term because that legislation is long overdue. Section 20 and the Second Schedule will go some way to providing protection for whistleblowers. It is vitally important in aiding investigation into white collar crime. The offence of withholding information in section 19 is also welcome and Part 3, generally, provides clarity about disclosure of documents and information, which has implications for investigation of white collar crime.
Part 2 is the most substantive element of the legislation with section 7 providing for enhanced powers to suspend a detention period. Amendments in this Part relate to the detention regime under the Criminal Justice Act 1984, which are welcome, particularly section 9, which seeks to bring clarity to the law on access to a solicitor. I have always thought we should go further and provide for the right to have a solicitor present during questioning, as is the case in England and Wales under the Police and Criminal Evidence Act 1984. That would save a great deal of court time and expense currently spent onvoir dire. Many issues raised during criminal trials and judicial reviews relate to questioning during detention periods. If the right to have a solicitor present was provided for in law, it might address many of these issues. At least section 9 will clarify the need for consultation before interviews are commenced. In practice, any portion of an interview carried out in a Garda station before a suspect has had access to a solicitor tends to be excluded.
I am glad the issue of overnight suspension has been clarified. Section 7 provides for the power to suspend an interview for up to four months, the rationale behind which I understand. However, several points need to be clarified. I note the member in charge who gives permission for the change of time to return must be an inspector. Has any thought been given to assigning this duty to a higher rank?
Most of the offences covered in the Schedule are complex. Section 3 refers to the complexity of investigations and so forth. Sections 4, 17 and 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 may not relate to white collar crime and may not be so complex. Was any thought given to the issue of the use of the new power in section 7?
I will raise other points on Committee Stage. I welcome the Bill.
Senators Bradford, O'Donovan and Bacik stated how a question mark hangs over the enforcement of a body of existing law in this area, a point the Minister must consider. The public would be forgiven for believing that white collar criminals act with impunity. To date, not one banker, developer or member of any golden circle is behind bars experiencing the delights of slopping out in Mountjoy Prison. The public are sick of being given the two fingers by those who contrive to dine or holiday in all the right places while happily telling us their former assets are now owned by their wives and partners. To that extent, I welcome the Minster's commitment to strengthening the Criminal Assets Bureau's powers for future examinations.
The Criminal Justice Bill 2011 is designed to deal with existing cases before the courts, a welcome development. No Member underestimates the level of utter frustration and anger among the general public at the perception that those who brought the country to its knees acted with impunity.
White-collar crime is complex in its nature. Rather than the process being frustrated by the ticking clock, it is welcome that the interview process of a suspect can be suspended to allow for further investigation of issues as they arise.
Section 15, allowing the District Court power to require the production of certain documents and, more importantly, be presented and identified in a particular order is another welcome provision. As anyone who has ever practised law knows, the best way to hide a document is to hide it like a needle in a haystack
I have reservations about the section 9 exemption of the general rule that the questioning of detained persons should not proceed without access to legal advice. When an individual waives his or her right to legal advice, a caveat must be included in order that it is a considered waiver and the person is exercising it without any pressure. The second exemption where the member in charge at the Garda station can proceed with questioning if he or she believes not to proceed would cause injury to others or damage to property runs in the face of a person's right to representation. We should proceed cautiously in this. While I understand the reasons for the measure, it flies in the face of accepted constitutional practice.
No crime is victimless. In this Bill's context, the victim is the country. I welcome its introduction and believe it will be significant legislation in bringing forward the issue of white collar crime.
I welcome the Minister for Justice and Equality, Deputy Shatter, to the House. I must purchase one of those mobile phones he has because he spends all the time on it. It must have all the answers he needs. Will he tell us which model it is?
I welcome the introduction of the Criminal Justice Bill 2011. As Senator Bacik stated, there is cross-party support to deal with white collar crime. Earlier on the Order of Business, I made the point that the Labour Party had a different position on the bank bailout before the general election to the one it has now it is in government. Senator Bacik just complained about being lectured to by Sinn Féin. The same was said by the former Taoiseach, Mr. Brian Cowen, and the late Mr. Brian Lenihan about the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Gilmore, when he accused the then Taoiseach of economic treason for putting taxpayers' money into the banks. This is still happening under the new Government.
We are dealing with the fall-out of the bailout.
If Labour Party Members cannot accept constructive criticism, then that is a matter for them. My point this morning was most certainly not a lecture.
It sounded like a lecture.
The Labour Party was good at lecturing people before the election. If it can give it, then it should certainly be able to take it.
There is a perception that those from a wealthy background or in well paid jobs are favoured in the criminal justice system. My generation grew up with the brown envelope brigade which saw corruption between developers, the banking system and politics. As Senator Hayden said, it was not a victimless crime. When I was growing up, politics was seen as a source of ridicule, particularly when the leader of the country told people to tighten their belts while being involved in a web of corruption. I remember hearing about meetings of Dublin City Council at which the gallery was packed with developers' lobbyists and not with interested members of the public. My generation now have over-priced properties built in the wrong places because of the corrupt relationship between planners, developers and politicians. No one has been held to account.
The same perception exists about white-collar crime and what happened in Anglo Irish Bank and the Irish Nationwide Building Society. Corrupt decisions were made by senior individuals in these banks, yet they have not been held to account. Now having to bail out these banks due to these decisions, it is galling for the people asked to pay for the bailout, such as those on social welfare or low incomes, not to see one person involved spend one night in a prisoncell.
The French philosopher, Michel Foucault, wrote in 1977:
Visit the places where people are judged, imprisoned or executed . . . One thing will strike you everywhere; everywhere you see two quite distinct classes of men, one of which always meets on the seats of accusers and judges, the other on the benches of the accused.
While the criminal justice system may accord with realities, it cannot accord with any reasonable conception of justice. It ought to be a basic principle of any justice system that criminals are treated equally, irrespective of class or background, and damaging crimes should be punished, regardless of by whom and in what context or employment. The introduction of legislation to deal with the growing plague of white collar crime has long been called for by all political parties. This is welcome.
The recent collapse of the global economy has started a conversation on a crime that has for too long been viewed as a victimless crime. We have seen, with Enron, the Irish banking system — particularly Anglo Irish Bank — and local authorities and bad planning decisions that these crimes were not victimless. We all know that many people are now facing and dealing with the consequences of the bad planning decisions made by people who were, essentially, making corrupt decisions. That is the bottom line and is what happened in this state. Very few of those people were properly held to account. I welcome the fact that at least some attempt is being made by the Government to deal with this. By its nature, white collar crime can be difficult to investigate and prove. We must be mindful and cognisant of this when dealing with this issue and must support the Minister and the Government to ensure that whatever provisions are put in place are robust, will work and can deal with the complex nature of this type of crime. The Bill proposes to introduce measures with the aim of assisting the Garda with investigation and prosecution.
I wish to deal with a number of proposals and recommendations being put forward by Sinn Féin. While we support the Bill, we want to be constructive and help make things better, not just in terms of the Bill but in shaping the debate. The first and most important necessity is the establishment of comprehensive and clear corporate liability for corruption offences. This is vital for the credibility of the State's measures against bribery, which have been criticised in international evaluations in the past. The OECD working group on bribery has recommended that Ireland codify and clarify the liability of legal persons for bribery offences. It submitted that the prosecution of legal as well as natural persons for corruption-related offences would serve as a powerful deterrent against corporate complicity in bribery and corruption. We need a firm commitment that there will be adequate resourcing for the Garda and the regulatory agencies in order to investigate and detect offences and further investment in the enforcement of laws and regulations preventing economic crime is imperative. I have been asked to conclude so will finish on that important point. It is absolutely necessary that following the passage of this Bill there will be enforcement. We can pass all the laws we want as Senator Bradford said earlier, but the important part is the ability to enforce those laws. There are questions to be asked as to whether the fraud squad has the resources to enable it to do what is necessary in the context of the implementation of this Bill in an adequate manner.
I thank the Minister for dealing with this issue so comprehensively; it is one of the most important issues that has faced the country because of what has happened. We cannot tolerate a two-tier judicial system where a certain class of people, simply because of the positions they hold, are not subject to the laws of the land or where crimes which are obvious to all of us — although perhaps not in terms of the legislation — can go unpunished. That has been the hallmark of what has happened in the banking system in recent years. The attitude has been that the person made a mistake, but it was not necessarily a crime. However, we know that corrupt and criminal practices were carried out in the banks where people made decisions from which they and their friends profited. That is what happened in the Irish banking system, yet we were not in a position to properly hold those people to account because of the dearth of legislation to ensure we could do so. That is wrong. I welcome the Minister's tentative steps towards dealing with this complex issue.
We on this side of the House are pleased that the Government has brought forward, relatively quickly, a Bill which was conceived by the former Minister, Dermot Ahern, who took a tough approach to crime and was always willing to look at new ways of dealing with it. It is a credit to the current Minister, Deputy Shatter, that he has come forward with the same type of idealism and willingness to bring forward new measures that will not always get universal support. However, there is much support on this issue because of the political and economic circumstances in which we find ourselves. I have not heard of any opposition to the Bill but I am sure there is some. However, it is not as noticeable as with other pieces of legislation in the crime area. While this is new legislation, it was put forward by the previous Government and much of the work was done by the former Minister.
The Bill reflects much of the frustration expressed by all of us in recent years at the slow pace of the investigation into Anglo Irish Bank and other banks by the Garda and of the efforts being made at that level and in the offices of the prosecutors. There are still those frustrations. Fianna Fáil was accused of slowing up the investigation, but members of the Fianna Fáil Parliamentary Party were baying for the blood of these bankers because we knew the political ramifications of not dealing with the issue. I suggest to the Minister that more pressure should be put on the Garda and the prosecutors, without threatening or compromising their independence. This is important, particularly if there is a prospect of serious charges being brought or convictions being obtained. The Minister knows he must be very measured in that regard. The situation is frustrating not only for the Minister but for the whole country in that very little has happened. I hope this legislation will seek to address that.
The legislation is not the solution to the problem as these are complicated crimes. Many of the people who engaged in what I believe was a criminal enterprise were probably so foolish, dull or stupid in themselves they did not realise they were committing crimes. However, that is no excuse. Ignorance of the law is no excuse and will not be allowed to be an excuse for these bankers or anyone else who facilitated the crimes that took place in banks that helped to bring economic destruction to this country.
We welcome this Bill. I cannot accuse the Government of delaying the Bill, but other legislation was given greater priority, including that dealing with the Smithwick tribunal. That legislation was brought forward urgently. We are a bit slower with this. Fianna Fáil would have been happy to facilitate even earlier passage of this legislation. I am not being critical, but I believe the Bill should have been the first priority for the Government. It was published some time in May and much of the work had been done before then. It is now the end of July. We would not have criticised a guillotine on important legislation such as this to get it into place, because it was delayed by the general election. That is the way things happen.
The former Minister used to say there was a lot of legislation sitting on the shelves in the Department and I used encourage him to bring forward legislation that would show a tough approach to crime and send a message to the community. I know the Minister is bringing forward the community service Bill today, but we are also looking forward to the forensic evidence and the DNA database Bill. We support this Bill and will not put forward amendments because we want to be unambiguous in our support. However, as much pressure as possible must be put on the people prosecuting and investigating these crimes. While they are independent, they must also be answerable to a public that is rightly very angry. We can only hope that the provisions of this Bill will be more effective than previous Bills we have put in place which, though used, have not delivered results, such as the gangland legislation passed a number of years ago. That legislation has been used, but I am unsure it has produced any results, which is disappointing.
We wish the Bill a safe and quick passage.
I welcome the Minister back to the Chamber. I too welcome this Bill. I also welcome the comments and contribution of Senator Cullinane. We all agree with him, although the language we might use to describe our anger might be a little different from the language he uses. Language is very important when discussing these issues. No party has a monopoly of the annoyance the people feel on this issue. While we in the Labour Party may not express our annoyance as forcefully as other commentators, many members of the party are privately incandescent with regard to this particular issue. I note the Minister's comments in his opening address in regard to his determination to see the Bill robustly through the Oireachtas and implemented in the most forceful manner which will, I suspect and hope, give a large degree of satisfaction to a large number of people. The Minister has, naturally, the support of the Labour Party and it is heartening to see he and the Government have the support of all parties.
I will start by thanking Senators for their contributions and support for this measure, which is a very important one. I appreciate the support from all sides of the House.
I do not want to be unduly contentious but I want to say to Senator Byrne that I wish my predecessor had done all the work on this Bill. In fairness to him he started some work on it but a substantial amount of work had to be undertaken on this measure. It was given top priority by me. In the Department it was the first Bill that we focused on to complete. A great deal of work was done in my Department and by the current Attorney General. We were still developing the Bill and because of the urgency in addressing the issues, the Bill was published before there was a full opportunity to deal with the whistleblower provisions in it. We were very pleased we were able to bring them forward on Report Stage in the Dáil and incorporate them in the Bill because they are an important aspect, particularly because of the content of section 19.
I want to respond to what has been said by Senators in a general way and hope they will appreciate that as Minister for Justice and Equality I always have to be careful not to say anything that might prejudice any future court proceedings or any criminal prosecutions that might occur. I share with Senators the outrage at the manner in which some people conducted their financial affairs. Some were obsessed by greed and had no thought for anyone who stood in their path in their avaricious desire to build monumental construction empires. In collusion with grossly negligent and inept bankers, they brought this country to the state it is in, together with very bad political decision-making by the previous Government.
There is something particularly obscene in seeing some of those who engaged in these activities swanning off out of the country and trying to establish themselves abroad and their spouses mysteriously coming into extraordinarily large sums of money that they seem free to invest in property or other ventures without any clear explanation as to what the origins of those moneys were. In so far as there has been any attempt to divert assets out of this country so as to enable people to avoid meeting their debts and to impose them, in turn, on taxpayers who are having to pick up the wreckage that they have left behind, I hope the rigours of the law can be applied to them and that proper action is available to be taken, not only in a criminal but a civil context.
In the context of the disaster that has afflicted the country, this is an issue not just for the Garda Síochána but for NAMA and other bodies to have particular regard to in trying to recoup assets where there is a suggestion they have been dealt with improperly. This legislation will be of assistance to the Garda Síochána. As I mentioned, I attended the conference that Shane Murphy and others spoke at. There was misreporting from it, where one of the speakers was reported as saying we do not need new legislation and that we have lots of legislation dealing with white collar crime. They were referring to the fact that there is a great body of legislation in the area of white collar crime but what was lacking was a piece of legislation such as this, which assists in the investigation of that crime allowing the Garda Síochána to get access to documentation and records, including electronic records, and requiring those who may have witnessed crimes to co-operate with the Garda in a manner that up to now our laws did not necessarily require.
This Bill is opening the door to ensure that those who will not co-operate with the Garda are required to do so. What is of particular assistance to it, among many provisions in this Bill, is the facility at an early stage in an investigation to apply to a District Court to gain access to information and documentation. A number of Senators welcomed, referred to and queried the 24 hour period for which people can be held for questioning and the fact that it can be broken up into two occasions. The reasoning and thinking behind this is that it has been the experience of the Garda in investigating white collar crime that one may need to talk to someone on more than one occasion. One may, in one's initial conversation or questioning, be given information that one needs to further consider and perhaps validate. In the context of thereafter accessing information and documentation, one may need to have a further conversation. That is why we have this structure.
One of the issues that I gave consideration to was whether a holding period of 24 hours is adequate — Senator O'Donovan raised that issue — or whether there should be a longer period. We of course have to have a balance in this in the context of protecting individuals' rights and at the same time facilitating the Garda Síochána in the investigation that it is undertaking. If, in the context of white collar crime, experience shows that additional time is required it is a matter I would return to but I hope that will not prove necessary.
The provisions in section 19 are particularly important because they put a very specific onus on those who are aware of individuals engaging in white collar crime to inform the Garda of what they know and to assist it in its investigations. I was interested in hearing what Senator Quinn had to say about that. He is right in one sense. It will impose obligations on accountants and auditors. One of the mysteries to me with regard to banking matters is how it was that accounts of financial institutions were audited in circumstances in which the validity of those accounts were seriously questionable. Towards the end of an accounting year it appears financial arrangements of a temporary nature were engaged in so as to conceal from the end of year accounts the true level of borrowings of individuals or on occasion to create artificial levels of deposits so as to make financial institutions look more secure than perhaps they actually were.
I ask myself what were some of the major auditing firms in this country doing as accountants. What was it they were certifying? What documentation would be examined to facilitate them signing off on these accounts? They were the people who should have been to the forefront of sounding the danger signals when they had access to examining and finalising accounts in the context of major financial institutions that everyone in this State understood to be operating correctly. Why did they think that? They thought it because their accounts were validated on an annualised basis. Serious questions remain to be answered in those areas.
It is important that accountants and auditors acquaint themselves with the provisions of section 19 because it will be relevant to the manner in which they undertake their work. There is nothing unique in that context because currently we have in place — a point which is relevant in another context to which I intend to return tomorrow in this House — certain obligations for those professionals who may be employed on behalf of businesses or banks.
For example, with regard to money laundering, there are particular obligations. Whether one is a lawyer or an accountant, if one discovers that a client is engaged in money laundering, one has an obligation to report that to An Garda Síochána. It is in that area that the balance between the confidentiality of a solicitor-client or accountant-client relationship and the public good is tilted towards the public good by requiring reporting.
Section 19 is of importance not just in ensuring the ordinary employee or manager in a firm or financial institution must make a report when he or she discovers that the principal directors in the firm, for example, or others are engaged in white-collar crime; it also applies generally, right across the board, to white collar crime, and will affect work undertaken by those professionally involved.
This legislation will facilitate the Garda in applying existing law more efficiently. Senator O'Donovan quite correctly and fairly referred to what I said in opposition when I expressed frustration at the length of time it was taking for the banking investigations to be completed. One of the first questions I asked on my first day in the Department of Justice and Equality was whether the Garda had enough resources to conduct the investigations that are being undertaken and whether it had the expertise required. I asked whether additional assistance was needed, for example, from forensic accountants. I had that conversation with the Garda Commissioner and asked my Department to arrange a meeting between the Garda Commissioner, those involved in the investigations and the Office of the Director of Corporate Enforcement to ascertain whether there was anything the new Government could do to facilitate the progress of the investigation. The answer was "No". They had what they needed in terms of resources, but what they needed was legislation of this nature, which is why this legislation was prioritised.
I was interested to hear my good friend and colleague Senator Bradford refer to the fact that this Bill was published on Friday 13 May. We finalised it that week and published it as rapidly as we could. If Friday 13 May ultimately proves, as we look back on this in two years time, to have been an unlucky day for those engaged in white-collar crime, perhaps it will also prove to be a day whose anniversary we celebrate to mark the publication of an effective measure to tackle the issue.
Senator Quinn referred to something in place in parts of the United States — a whistleblower reward scheme. In the context of the finances of the State, we are not in a position to pay people money for doing their duty to the State by assisting the Garda in reporting crime and notifying the Garda when they have information that would be of assistance in the prevention of white collar crime. That should be seen to be an obligation of all citizens in the State if they know of an event of criminality that may take place and may have catastrophic consequences for individuals, companies or the State. We should see it as our obligation to make such reports. It should not be something we are seduced into doing because of the offer of financial reward. I hope that is not an approach we will have to take; certainly, it is not an approach the Government intends to take.
I am conscious that we are yet to have Committee and Report Stages of the Bill, and I appreciate that Fianna Fáil Members, at least, are not tabling amendments. This does not mean that we should not tease out some of the sections on Committee Stage. Perhaps we can return to some of the questions I have not answered at that stage, and I am happy to take any other questions.
It is important that the laws we have are applied rigorously to bring to justice people engaged in criminality. Justice should be blind to the background of individuals — or, as Senator Cullinane mentioned, their class. Whether someone openly robs a bank or is engaged in a more pernicious form of white collar crime which is more concealed, the same laws should apply.
It was unfortunate that section 57 of the Criminal Justice Act 2001 was not brought into force earlier. It was in my second or third week as Minister that I attended the conference mentioned earlier, at which this was drawn to my attention, and I became anxious that this would be brought into force as soon as possible. I hope by doing that, when court hearings take place, we will facilitate the furnishing of juries with information that assists them in understanding the nature of evidence given, particularly when dealing with corporate or white collar crime, in order to achieve justice in the outcome of any case that is heard.
I thank Senators for their helpful and constructive contributions. I look forward to taking Committee and Report Stages.
When is it proposed to take Committee Stage?
Committee Stage orderded for Wednesday, 27 July 2011.