This meeting has been convened to consider the Criminal Justice Bill 2011. Apologies have been received from Deputy Seán Kenny. I welcome the Minister for Justice and Equality, Deputy Alan Shatter, and his officials. A grouping list has been circulated to members. I ask attendees to switch off their mobile phones because, even in silent mode, they interfere with the recording equipment.
Criminal Justice Bill 2011: Committee Stage
Sections 1 to 6, inclusive, agreed to.
SECTION 7
Amendments Nos. 1 and 2 are related and may be discussed together.
I move amendment No. 1:
In page 8, lines 44 to 45, to delete all words from and including "inform" in line 44 down to and including "concerned" in line 45 and substitute the following:
"give the person concerned notice in writing or cause him or her to be given notice in writing".
The purpose of amendments Nos. 1 and 2 is to clarify the wording of the requirement on the Garda Síochána to give notice to a detained person where paragraph (d) of the new subsection (3B) of section 4 of the Criminal Justice Act 1984, as inserted by section 7 of the Bill, applies to the person. That provision deals with the situation where a person’s detention is suspended under the new subsection (3A) but continued in respect of another offence and the total 24-hour period of detention permissible under section 4(9) of the 1984 Act is reached during that continuation of detention. In such a case, the member in charge of the Garda station must give the person concerned notice in writing of this fact. The amendment makes it clear that the person must be given notice in writing.
Amendment No. 2 relates to section 4C of the Criminal Justice Act 1984, as inserted by section 8 of the Bill. This new section requires the Minister to prescribe the form of notices to be given to persons whose detention is suspended. The amendment aligns the wording of the requirement to prescribe the form of notices with the clarified wording provided by amendment No. 1. These are essentially technical amendments.
Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."
How was the timeframe of four months for the suspension period arrived at? Is the Minister satisfied that four months is sufficient?
There is no magical formula. The figure of four months was chosen in order to ensure the suspension would not be unnecessarily extended while also giving the Garda an opportunity to undertake further investigation. I am conscious of the need both to facilitate the Garda in its work and to avoid imposing unnecessarily on people's rights. I hope the four-month period will prove to be sufficient to facilitate the working of the legislation. I am sure the Garda will inform me if difficulties arise and, in the circumstances, I am sure I will have the co-operation of the House in addressing the matter. I was anxious to avoid a situation where, for example, the period of suspension might run for 12 months. One could argue for a period of five or six months as persuasively as for four months but certain civil liberty issues could arise in that context. There is no magic formula, but I was advised that a period of four months was adequate.
Will the Minister clarify that suspension of detention does not impose any restrictions on a person in terms of travel or bank accounts being frozen? Will people be free to go pending recall?
Yes. The fact that someone is questioned under the provisions of the legislation does not raise any implications as to his or her conduct in any criminal context of any description. These provisions apply in the context of an investigation under way and the person concerned is not constrained.
Question put and agreed to.
SECTION 8
I move amendment No. 2:
In page 14, to delete lines 10 to 16 and substitute the following:
"(a) the form of notices for the purposes of subsections (3B), (3C) and (3D) of section 4, and
(b) the notice period for the purpose of section 4(3D)(b).”.
Amendment agreed to.
Section 8, as amended, agreed to.
Sections 9 to 14, inclusive, agreed to.
SECTION 15
Question proposed: "That section 15 stand part of the Bill."
This section deals with court orders to produce documents that provide information. I give notice to members of my intention to bring forward amendments on Report Stage to deal with certain procedural issues brought to the attention of my Department in the context of the workings of the section. These amendments will be relatively simple and straightforward.
Question put and agreed to.
Section 16 agreed to.
SECTION 17
Question proposed: "That section 17 stand part of the Bill."
The Bill imposes obligations on persons who have information on the commission of certain crimes. Given that we are placing this onus on people to come forward, we must have protections in place for them. As such, this legislation goes hand in hand with the promised legislation on whistleblowers. My party would be happy to facilitate the quick passage of that legislation to ensure it was in place in tandem with this Bill. Is there a timeframe for the enactment of the whistleblowers legislation?
I thank the Deputy for raising that issue which I had intended to deal with in respect of section 19. I share his concerns. As he said, the Bill imposes obligations on persons who know of the commission of a white collar crime or are concerned that a crime might be committed to report their concerns to the Garda. I accepted the views expressed by Deputies opposite on Second Stage that we had to ensure there were protections in place for those in employment to prevent their being disadvantaged. I am pleased to inform them that we have been working on a substantial amendment in this regard. It is a Government commitment to bring forward comprehensive legislation on whistleblowers. My colleague, the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, will deal with it, but there is substantial work still to be undertaken. In the context of this legislation, I was anxious that, in the intervening period before the comprehensive legislation was introduced, necessary protections be in place for workers. The Cabinet yesterday cleared the relevant provisions for inclusion in the Bill. We hope to have them finalised in the Attorney General's office by the end of this week and available for inclusion on Report Stage.
Question put and agreed to.
Section 18 agreed to.
SECTION 19
Question proposed: "That section 19 stand part of the Bill."
The whistleblower provisions are particularly relevant to this section. I hope Deputies will be pleased with the comprehensive provisions prepared within my Department which I expect to be cleared by the end of the week.
Will they relate specifically to this section?
It will be a whistleblower provision in the legislation whereby a person engaged in employment who is concerned about events or acts taking place of which he or she has knowledge in which another person may be engaged in white collar crime of the nature addressed in the Bill and who furnishes such knowledge to the Garda Síochána and co-operates, reports and advises the Garda of what is occurring, will be very comprehensively protected in their employment. Ultimately, in the medium term there will be a comprehensive Bill dealing with whislteblower issues. We were anxious to close that door in the context of this legislation to ensure the protection is in place and is fully dealt with in the context of recourse to the Garda Síochána.
Question put and agreed to.
Section 20 agreed to.
SCHEDULE
I move amendment No. 3:
In page 28, lines 6 and 7, to delete paragraph 1 and substitute the following:
"1. An offence under section 58 of the Central Bank Act 1971 insofar as it relates to a contravention of section 17, 18, 23, 24 or 25 of that Act.".
In page 28, lines 6 and 7, we are deleting a paragraph and substituting the paragraph the Deputies will have in front of them. The purpose of amendment No. 3 is to improve the clarity of paragraph 1 of the Schedule. It is section 58 of the Central Bank Act 1971 as substituted by section 9 of the Central Bank Act 1989, which provides for offences and penalties for contravention of provisions of the 1971 Central Bank Act. The reference to section 23A of the 1971 Act is proposed to be removed because failure to comply with that section is not an arrestable offence under section 58.
I should mention at this juncture that I may bring forward further amendments on Report Stage in the main to add further offences to the Schedule. This is a matter that is under continuing examination by my Department in consultation with the Office of the Attorney General. We may make some further changes to the Bill in that regard.
Amendment agreed to.
I move amendment No. 4:
In page 28, line 9, paragraph 3, to delete "An offence under section 20, 24(4) or 24A(8) of the Trustee" and substitute the following:
"An offence under section 20(4) or 24(4) of the Trustee"
This is a technical amendment to paragraph 3 of the Schedule dealing with offences under the Trustee Savings Banks Act 1989. The offence under section 24A is proposed to be removed on the advice of the Office of Parliamentary Counsel.
Amendment agreed to.
I move amendment No. 5:
In page 28, line 11, paragraph 4, before "of" to insert "or 13(5)".
This amendment proposes to add the offence under section 13(5) of the Unit Trusts Act 1990 to paragraph 4 of the Schedule. That offence relates to the prohibition of certain transactions and the making of certain profits by management companies under unit trust schemes and by certain other persons. My Department has been advised that this offence is one whose investigation would generally be complex and suitable for inclusion in the Schedule to the Bill. It will enhance the protection that is available to individuals in the area of while collar crime.
Amendment agreed to.
I move amendment No. 6:
In page 28, lines 18 and 19, to delete paragraph 7 and substitute the following:
"7. An offence under section 12(2) of the Consumer Credit Act 1995 insofar as it relates to a contravention of subsection (1) or (3) of section 97, or section 101, 102 or 127, of that Act.".
This amendment is to improve the clarity of paragraph 7 of the Schedule. It is section 12 (2) of the Consumer Credit Act 1995 as substituted by the Central Bank and Financial Services Authority of Ireland Act 2004 which provides for indictable offences and penalties for contravention of certain provisions in the Consumer Credit Act. The amendment also adds to the Schedule two offences under section 97 of the 1995 Act. These offences relate to engaging in the business of moneylending on behalf of the holder of a moneylender's licence at a place other than the business premises of the licence holder. My Department has been advised that the investigation of these offences can also be complex and are suitable for inclusion in the legislation.
Amendment agreed to.
I move amendment No. 7:
In page 28, lines 24 to 26, to delete paragraph 10 and substitute the following:
"10. An offence under section 5(2) of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007 insofar as it relates to—
(a) a failure to discharge a duty to which a person is subject under Regulation 40(1) or 112(1) of the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007), or
(b) a contravention of Regulation 19, 52, 159 or 187B of those Regulations.”.
Again this amendment is to improve the clarity of paragraph 10 of the Schedule. Penalties for conviction on indictment of Irish investment services law, including the relevant provisions of the European Communities (Markets in Financial Instruments) Regulations 2007, are provided for by section 5(2) of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007. The reference to the offence under regulation 185(2) of the 2007 regulations is to be replaced by a reference to the offence under regulation 187B of those regulations. This offence relates to the provision of false or misleading information to the Central Bank in the course of compliance with the requirement of, or under, the regulations. The amendment takes account of amendments to the 2007 regulations provided for in regulation 7C of the European Communities (Assessment of Acquisitions in the Financial Sector) Regulations 2009. They are contained in SI 206 of 2009 and, in addition, in the amendment to section 5(2) of the 2007 Act provided for in regulation 8 of the 2009 regulations.
Amendment agreed to.
I move amendment No. 8:
In page 28, line 27, paragraph 11, after "Regulation" to insert "20(2), 22(4),".
The purpose of this amendment is to add two offences under the European Communities (Reinsurance) Regulations 2006 to paragraph 11 of the Schedule. The offence is under regulation 20(2) and relates to the duty on reinsurance undertakings established in the State to maintain sound and adequate administrative and accounting procedures and internal control mechanisms. The offence under regulation 22(4) relates to the prohibition of the transfer of a reinsurance undertakings policy portfolio without authorisation by the Central Bank. My Department has been advised that these two offences are suitable for inclusion in the Schedule by reason of the complexity of investigations that would be required, should there be an alleged offence.
Amendment agreed to.
I move amendment No. 9:
In page 28, line 36, paragraph 14, after "or 297" to insert the following:
", or under paragraph (a), (d), (e), (f), (g), (i), (j), (k), (l), (m), (n), (o) or (p) of section 293(1),”.
The purpose of this amendment is to add certain defences under section 293(1) of the Companies Act 1963 to paragraph 14 of the Schedule. The offences relate to offences by officers of companies in liquidation. This is something important to be included in the legislation. Offences deal with matters such as failure to disclose certain matters to the liquidator, fraudulently removing company property, concealing, destroying or falsifying books and papers relating to the company, fraudulent alterations to company documents and making false representations to creditors. My Department again has been advised that these offences are suitable for inclusion in the Bill because of the complexity of the regulations. These are particularly important matters to be included in it and illustrate the ongoing work that we will be carefully undertaking on this Bill to ensure we address areas that should be included.
On a point of clarification, does that affect activity in the lead-up to a liquidation, such as removal of assets from a company at a time when it may have been known by the directors that the company was in serious financial difficulty?
It would certainly include any behaviour in relation to a company that was fraudulent. That, I think, is probably the area the Deputy has in mind and it will facilitate investigations in those circumstances.
Amendment agreed to.
I move amendment No. 10:
In page 28, lines 38 and 39, to delete paragraph 15 and substitute the following:
"15. An offence under any of the following provisions of the Companies (Amendment) Act 1986:
(a) section 22(1)(a) (insofar as it relates to a failure to comply with section 5 or 16 of that Act),
(b) section 22(2) (insofar as it relates to a failure to take all reasonable steps to secure compliance with the requirements of section 3 of that Act or a failure to comply with section 13 of that Act), or
(c) section 22(3).”.
The power of this amendment is to add offences under section 22 of the Companies (Amendment) Act 1986 to paragraph 15 of the Schedule. Section 22 of the 1986 Act provides for offences and penalties under that Act. The offences being added to the Schedule relate to offences under section 22 consisting of contravention of the requirements of sections 3, 5, 13 and 16 of the 1986 Act. Section 3 of the 1986 Act deals with general provisions in relation to accounts while section 5 contains provisions relating to accounting principles. Section 13 makes provision for specified information to be included in the directors' report under section 158 of the 1963 Act, which is the report on the affairs of a company required to be attached to the balance sheet laid before the annual general meeting of the company. It is, of course, important that those type of reports accurately reflect the reality of the company's financial standing and dealings. Section 16 provides for requirements in relation to publication of information regarding subsidiary and associated companies.
The advice is that it is appropriate the offences that could arise in this context be included in the Bill because, like in other areas of white collar crime, investigations can be complex and access to information and documentation is very important. Their inclusion will ensure that gardaí have the best possible legislative assistance available to them for such investigations.
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
I thank the Minister and his officials for attending. As the committee has matters to discuss I propose that the meeting goes into private session.