Dáil Éireann Debate, Tuesday - 27 November 2018
334. Deputy Maurice Quinlivan asked the Minister for Business, Enterprise and Innovation the number of prosecutions the Office of the Director of Corporate Enforcement has brought in 2017 and to date in 2018, in tabular form. [49282/18]
View answerInvestigations/prosecutions - The ODCE has a remit to investigate indications of both civil and criminal wrongdoing under company law. In conducting such investigations, the ODCE has a range of investigative powers at its disposal as provided for by the Companies Acts.
Exercise of investigative powers
Those powers are supplemented by those powers that members of An Garda Síochána (“AGS”) possess by virtue of being members of AGS. During the period covered by the question, i.e., 2017 and 2018, the ODCE exercised the following investigative powers:
|
Investigative (and related) powers exercised |
2017 |
2018 |
|
Production and Other Orders under the Companies Act 2014, the Criminal Justice (Theft & Fraud Offences) Act 2001 and the Criminal Justice Act 1994 (as amended) (not an exhaustive list) |
52 |
54 |
|
Directions to liquidators to submit statutory reports |
45 |
46 |
|
Arrest |
3 |
5 |
|
Search and Seizure |
4 |
0 |
|
Total |
104 |
105 |
Enforcement actions
Enforcement actions arising from the exercise of the investigative powers referenced above can be civil in nature and/or criminal in nature.
Civil enforcement
In March 2018, and following a lengthy investigation, the ODCE lodged an application with the High Court for the appointment of Inspectors to Independent News & Media plc (“INM”). In September 2018, following an unsuccessful Judicial Review and a subsequent three day hearing, the President of the High Court appointed two inspectors to INM. The Inspectors are now in situ and are due to produce their first report to the High Court in April 2019.
Other civil enforcement actions, i.e., applications for the disqualification of the directors of insolvent companies that have been struck off the register, are dealt with under the response to question reference 49281/18.
Criminal enforcement – summary prosecutions
The ODCE is only empowered to initiate summary prosecutions (i.e., in the District Court). Only the Director of Public Prosecutions (“DPP”) can initiate a prosecution on indictment (i.e., in the Circuit Criminal Court before a jury).
Summary prosecutions are only suitable for relatively minor matters and, as such, the ODCE typically seeks to resolve issues of underlying non-compliance by other, more cost, effective means such as, for example, by issuing warning letters, by requiring evidence of rectification and/or issuing statutory directions requiring the taking of certain actions. Consequently, and consistent with its strategic focus on deploying finite specialist resources (i.e., Garda, accounting, legal and digital forensics) towards more serious indications of wrongdoing, the ODCE did not initiate any summary prosecutions in the District Court over the period 2017 to 2018.
Referrals to the DPP
Investigations into more serious indications of wrongdoing will typically result in a file being submitted to the DPP for consideration as to whether charges should be directed on indictment. Whether charges are directed is solely a matter for the DPP.
During the period covered by the question, i.e., 2017 and 2018, the ODCE submitted files to the DPP for consideration as follows:
|
- |
2017 |
2018 |
|
Files submitted |
5 |
0 (YTD) |
Directions to charge on indictment
Once an investigation file is submitted to the DPP, the timeframe within which a decision is taken as to whether to charge or not is outside the ODCE’s control. In complex cases, it is not unusual for the DPP to seek advices on proofs from Counsel prior to making such a decision.
Where the DPP directs charges on indictment, the matter enters the Courts system where the timing is, similarly, outside the ODCE’s control. During the period covered by the question, i.e., 2017 and 2018, the DPP directed charges on foot of ODCE files as follows:
|
|
2017 |
2018 |
|
Charges directed |
1 alleged offence of Fraudulent Trading |
1 alleged offence of Fraudulent Trading
6 alleged offences of Money Laundering
1 alleged offence of the Use of a False Instrument |
|
Total |
1 |
8 |
