I welcome Members to our resumed discussion on the Bill.
NEW SECTION.
Page 2
Competition (Amendment) Bill, 1994: Committee Stage (Resumed).
Debate resumed on amendment No. 5a to amendment No. 3:
In page 2, before section 2, to insert the following new section:
"2.—All evidence obtained by an authorised officer under section 21 of the Principal Act shall be admissable in evidence in summary proceedings or in a trial on indictment brought in respect of an offence under section 2 of this Act.".
(Deputy O'Malley).
My amendment No. 5a involves the insertion of a new section to the effect that evidence obtained by an authorised officer under section 21 of the 1991 Act would be admissible in evidence in criminal proceedings brought in respect of an offence under the new section 2. As it stands, authorised officers can be put in by the Minister or the authority to seek to obtain evidence under the 1991 Act but because that Act relates to civil matters only the evidence that may be obtained is not admissible in the criminal proceedings that would be taken under this Act. Since the evidence they obtain may be the principal or, in some cases, the only evidence, if this amendment is not accepted that evidence is excluded from a prosecution. We must ask if the Minister is serious about getting convictions or if it is just a window dressing exercise. The Minister brings in offences for which we prescribe relatively substantial penalties such as a fine of £3 million and imprisonment up to two years but there is no possibility of obtaining a conviction. It would be all the same if there were a fine of £30 million or 30 years imprisonment; no one will be subjected to the penalties because there will not be any convictions.
Given the nature of the activity, if a conviction is to be secured there must be a power of arrest, the right to carry out dawn raids and where authorised officers are sent in under the old Act and produce evidence they must be able to adduce that evidence in the criminal trial. If they cannot do so the criminal trial will be a waste of time. What is the point of having one if those who investigate the matter are not allowed to produce their evidence? It would be similar to telling the gardaí that they could not use their evidence against a murderer in a criminal trial in order to secure his conviction but could use it in a civil case which the relatives of the deceased might bring against the murderer. It would be laughable if the gardaí were put in such a position. It is similar with this because the authorised officers are the investigating officials. If their evidence is not admissible why bring a prosecution at all?
It underlines my feeling that these new long sections are being inserted to suit public opinion and are meaningless in legal terms. They sound nice and give the idea that the Government wants to clamp down and is getting tough on criminals. The reality is the Government is not doing so. One can say certain things will be offences and carry heavy penalties but if one is not prepared to take the normal steps to enable the available evidence to be given, one is not taking reasonable steps to ensure convictions will be secured. For that reason I strongly urge that the amendment be accepted.
The Deputy is not quite accurate. Amendment No. 17 seeks to introduce powers clarifying that authorised officers have their powers in criminal cases under this Act in the same way as they have them in civil cases. The amendment arises from discussions we had earlier.
I did not see that amendment.
On a point of clarification, the amendment was circulated by a staff member this morning and I received it a few minutes before the Deputy arrived.
The amendment clarifies that the powers in sections 20 and 21 apply also in the case of the competition Act criminal offences we are dealing with and also clarifies the position regarding records, including disks and other forms of evidence other than documentary evidence. Most evidence would be admissible in a criminal case under the existing sections 5 and 6 of the Criminal Evidence Act, 1992 so there is no issue of general inadmissibility of this evidence. Sections 5 and 6 deal with the admissibility of documentary evidence and provides that such evidence is admissible. However, it provides cases where such evidence might not be admissible and it is generally related to the privilege against self- incrimination. I am advised by the Attorney General that to accept the Deputy's amendment, which seeks to go beyond the Criminal Evidence Act, would run the risk of removing the privilege against incrimination in respect of the new offence. We could encounter serious problems regarding compatibility with the European Convention on Human Rights. I cannot accept the amendment.
Was that amendment framed following our discussion last week?
It was in the context of that discussion. Members were unhappy——
That the Minister was "dodging".
——that the powers of authorised officers were not necessarily carried through to this Bill. This is made explicit in the amendment and deals with another concern raised regarding the types of records that might be involved.
Is the Minister saying that amendment No. 17 to section 10 is in response to amendment No. 5a?
No. It is in response to issues raised last week. However, it is germane to amendment No. 5a in that the amendment deals with evidence authorised officers can collect. Amendment No. 17 clarifies that they can collect such evidence in respect of criminal cases but admissibility of that evidence would be governed by sections 5 and 6 of the Criminal Evidence Act which sets out the circumstances in which such evidence would be admissible in a criminal case. There are limitations that refer to human rights that would limit the extent to which that evidence would be admissible although most of it would be admissible.
As amendments Nos. 8a and 9a are related to amendment No. 5a, we have a grouping, by agreement, of amendments Nos. 5a, 8a and 9a. To avoid repetition it would be advisable if the Deputies concerned would speak to their amendments.
Amendment No. 8a states:
In page 3, before section 3, to insert the following new section:
"3.—Expert evidence shall be admissible in a summary prosecution or in a trial on indictment for an offence under section 2* of this Act.".
I heard what the Minister said but I do not believe it is adequate. There is no doubt that amendment No. 17, which I have just seen for the first time, is an improvement, but it does not clearly cover that such evidence should be admissible in a criminal trial. Amendment No. 17 proposes the insertion of a new section and the only part of that amendment which meets what is contained in amendment No. 5a is in section 10 (2) (a) which provides that "by the insertion in sections 20 and 21 after ‘this Act', in each place where those words occur, of ‘the Competition (Amendment) Act, 1996, or the Act of 1978'...". There is nothing in that to make it clear that expert evidence should be admissible for criminal purposes. That is borne out by the fact that as well as the adding in of the Competition (Amendment) Act, 1996, the Act of 1978 is also added in. The Act of 1978 is the Mergers, Take-overs and Monopolies (Control) Act, a purely civil Act. They cannot be all brought together and the contents of each applied for every purpose. The Minister glibly told us that the Attorney General advised that this would be adequate. How many times have we heard that and it was proven wrong? Time and again that has been the case in serious matters. This is not enough and I am disappointed about that. At best it will give rise to grave uncertainty. I forecast there will be no convictions under this legislation. Having failed to secure any we will have to return here in two or three years to strengthen it and include those provisions that I asked be inserted.
Amendment No. 8a deals with another aspect of the same matter. It provides that expert evidence shall be admissible in a summary prosecution or in a trial on indictment for an offence under section 2.
As amendment No. 11 in my name is similar to amendment No. 8a, should it be taken with it?
We will deal with it separately. This is a grey area and the Deputy can speak to her amendment separately.
At present expert evidence is admissible in a civil case. Experts are called to give expert evidence in civil cases every day in court and there is no difficulty about it, but they are not called to give evidence of their opinion which is not regarded as necessarily evidence in a criminal trial. Unless experts express their opinion on the nature of the type of activity that the new part of the Bill is allegedly trying to address there is no possibility of getting a conviction. Otherwise people can say they did certain things but that it does not matter and there is nothing wrong with that. An expert would have to give an opinion as to why such activity is wrong. In particular the type of experts that would be involved would be economists who would be required to indicate the effect of such activity on the market-place and on other companies. Accountants, and others, would be required to show the effect of such activity in cash terms on competitors and others in the market-place. Experts would be required to give evidence as to how the price of a product or commodity increased and remained at a particular level as a result of certain actions of a price fixing nature carried out by a defendant. If expert evidence is not admissible, one does not have any chance of convicting a defendant for engaging in such activity. As matters stand, if one were to call an economist or another expert to give evidence of the effect of such activity on the market-place, the defendant could object to that evidence and the judge would have to rule it out. The only beneficiary in that case would be the defendant.
The system is weighted in favour of the defendant. I was amazed to hear the Minister respond in reply to my earlier amendment that he was concerned for human rights. The concept of human rights has been extended very far when we are so concerned about the rights of those who manipulate the market-place for their own benefit to the detriment of the economy and consumers. It shows the enormous gulf that exists between the outlook on those matters here, where people who engage in such activity are regarded as valuable pillars of society and, for example, in the United States where similar people are not only not considered pillars of society, but are put in jail. At any given time several dozen of such individuals may be found in jail, sometimes for lengthy periods, for manipulating markets, price fixing, bid rigging, operating cartels and other illegal activities. Here those individuals are lauded in the newspapers and elsewhere and we are supposed to look up to them. The Minister has expressed his concern about their human rights. One would think they were helpless refugees in a camp in Bosnia being blackguarded right, left and centre by everybody when the opposite is the truth. Those individuals are blackguarding people right, left and centre and Members of this select committee are being told about their human rights, not about those of people in the community who are weak in that they do not have economic power. This Bill is supposed to try to redress the balance between those who are economically weak and vulnerable and those who are powerful and who have acquired their power by illegal activities. The Minister is telling us that he agrees that the activities in which they are engaged are illegal and should not happen, but he is concerned about their human rights and that we will have to protect them if they are prosecuted. That is the wrong approach and, unfortunately, it is not uncommon here.
It reflects, as the Minister has said and in the general attitude he adopts, a fairly widespread view here that such people should be immune from prosecution or, if not, that they should, at least, be immune from conviction. Amendment No. 8a is straightforward. I cannot see what harm would be done by accepting it and I can see great harm being done by not accepting it.
So far as amendment No. 9a is concerned, documents of all kinds, including electronic, would be admissible against individual directors or managers of the body corporate if these documents were found in the possession of the company. What happens in this type of case in other countries — which I am trying to prevent happening here — is that a raid is made by authorised officials, police, customs officials or whoever is undertaking the task who find all kinds of incriminating documents. This happens in Britain quite often. The directors and managers of the company concerned say: "the documents were there but, of course, we did not know anything about them. Somebody must have put them on a file but they never told us". The truth is that they instructed the employees of the company to act in this way. Therefore, there should be a rebuttable presumption that those who control a company, either as directors or managers, or other senior officers, knew what was going on, and if not, the onus should be on them to prove it. That is fair. It has been done in other countries and is regarded as fair, it is also regarded as necessary. If we do not have such a provision it means these people will simply troop into court and say: "fair enough, all those documents are there but we did not know about them, and it has nothing to do with us". If that is the law it is almost impossible for the prosecution to prove they did know because you would have to be prove that they attended meetings at which this was decided as a matter of policy and it would be necessary to have particular records of those meetings, recordings of them or something of that kind. That is almost impossible to obtain.
Nobody can complain — his human or other rights are not infringed — if there is not just an absolute presumption but a rebuttable presumption. If he genuinely did not know he can go in and prove he did not know. In the absence of his doing that, it has to be assumed he did know if he is in control of the company and if what is being done is company policy. We have had examples of this here in the recent past where employees of a company in one case got six years jail for doing things which they only did because they were told to do so by the directors of the company. The directors of the company have got off scot-free because, apparently, the Garda take the view that under the law they cannot prove the directors knew. The directors deny they knew but it is perfectly evident that they did know. The question this committee should ask itself is whether it will perpetuate that injustice. It is regrettable that we would perpetuate it. For that reason these amendments should be accepted.
Does the Minister wish to add to what he said?
The Deputy is caricaturing what I said. If we insert provisions in the Bill which could be struck down by the convention we would be doing ourselves no service. I repeat what I said, the powers of authorised officers apply in the collection of evidence. The question of the admissibility of that evidence is governed by the Criminal Evidence Act. That evidence would be generally admissible except under the rules that provide, for example, against self incrimination.
In respect of the other amendments, the position on expert evidence is that it is regularly given and there are questions of economic opinion which could and would be acceptable. Deputy O'Malley is suggesting the courts would rule it out but there is no legislation which rules it out. I am advised by the Attorney General that such evidence would be acceptable in appropriate cases.
Amendment No. 9a deals with the question of the admissibility of evidence. This is dealt with in sections 5 and 6 of the Criminal Evidence Act and includes computerised records which are reproduced in permanent legible form. On the issue of the rebuttable presumption, the position under section 3 (4) (a) of this Bill is that where there is a proven anti-competitive offence it will imply guilt also on the part of those who were in control of the company where an offence has been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate. I am already making provision for a company which is found to have been committing an offence. It will also imply guilt on the part of those who consented, connived or were neglectful. I question whether the Deputy's amendment adds to what has been provided for in section 3 (4) (a).
Is Deputy O'Malley pressing his amendment?
I am. I am disappointed that no real debate is taking place here. I am pointing out problems. The Minister is not dealing with my arguments, he simply said: "the Attorney General said it would be all right, therefore that should be the end of it". For this reason the Minister's reference to the new section 3 (4) (a) is ill-founded. What I am talking about in these three amendments is evidence and evidential provisions. Section 3 (4) (a) refers to a substantive offence, the commission of an offence. The Minister concludes by saying that because he deals with these matters in section 3 (4) (a) it seems that what I am suggesting in regard to evidence against directors, managers and so on is not necessary. These measures are necessary because you will never get proof of an offence by these people unless there are provisions of that kind. Section 3 (4) (a) refers to where an offence has been committed by a body corporate and is proved to have been committed with the consent or connivance of one of the people concerned. You cannot prove it and therefore the provision is of no use. That is a substantive provision creating an offence, it has nothing to do with evidence, as the Minister referred to.
I am disappointed the Minister is not prepared to enter into the argument but simply said, "the Attorney General says it will be all right".
How often have I heard that and how often has it turned out to be wrong? There is no need to remind the Committee of the numerous occasions when that was clearly shown to be the case. The intent behind the provision is correct but it is useless in terms of practical law and will not work in terms of securing a conviction.
In fairness to the Attorney General and his predecessors, an enormous amount of the advice they gave turned out to be accurate. We tend to remember the times when the courts, in their wisdom, overruled their judgments. However, on balance, the advice is more often right than wrong.
We are entitled to cast our memory back to the time when the then Attorney General prosecuted Miss X and I told him he was mad.
Members should try to avoid referring to that historical event. Is the Deputy pressing his amendment?
Yes.
Amendment put.
The Select Committee divided: Tá, 9; Níl, 12.
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Tá. |
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Ahern, Michael. Byrne, Hugh. Leonard, Jimmy. Nolan, M.J. Ó Cuiv, Éamon. |
O'Keeffe, Batt. O'Keeffe, Ned. O'Malley, Desmond J. Power, Sean. |
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Nil. |
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Bell, Michael. |
Dukes, Alan. |
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Boylan, Andrew. |
Finucane, Michael. |
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Broughan, Tommy. |
Fitzgerald, Brian. |
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Bruton, Richard. |
McCormack, Pádraic. |
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Costello, Joe. |
Ring, Michael. |
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Crawford, Seymour. |
Sheehan, P. J. |
Amendment declared lost.
On a point of order, can Members substitute for a Member in another party?
Only on the Government's side, not Opposition, as per Standing Orders. The Standing Orders provide that a Government Deputy may substitute for a Deputy from any other party other than an Opposition party.
That is rather peculiar.
That is by Order of the Dáil and I must operate on the basis of the Order.
On a point of order, is it the case that the Opposition parties can substitute among themselves?
That is correct. I now call on Deputy O'Malley to move his amendment No. 6 to section 2.
On a point of clarification, that whole section is being deleted under another amendment.
That is correct.