While it is crucial to identify and learn from any shortcomings in this particular investigation into the affairs of Anglo Irish Bank, it is important to note that this investigation took place in the period 2008 to 2012.
Organisational reforms in the ODCE were commenced in 2012 to enhance the capability of the Office to investigate complex breaches of company law and to ensure a more efficient and effective use of its resources. These include:
- Reorganising the structure of the Office;
- Recruiting additional expertise, including 8 Forensic Accountants, a Digital Forensic Specialist, 2 Enforcement Portfolio Managers and 2 Enforcement Lawyers;
- As senior-level vacancies have arisen, reconfiguration of the skill sets, competencies, roles and responsibilities associated with those posts to better reflect the organisation's current needs;
- Amending the investigative procedures used by the Office so that members of An Garda Síochána take the lead in all criminal investigations; and
- Fostering a greater culture of risk management within the Office.
The account of the investigative shortcomings identified by Judge Aylmer was published on 4 December 2018 on the website of my Department. The purpose of publishing the account is to understand the factors that led to such investigative shortcomings between 2008 and 2012 and to take appropriate steps to ensure they have been addressed.
To enhance the capability of the staff in the ODCE to investigate complex breaches of company law, specialised training was provided in December 2012 in the Garda Training College Templemore for ODCE staff to assist with statement taking, interviewing of witnesses, preparation of files for the DPP, exhibits handling and disclosure. Garda Level 1 Interview training was also made available in 2015.
In addition, one of the actions in the Government's package of Measures to Enhance Ireland’s Corporate, Economic and Regulatory Framework, published in November 2017, is the establishment of the Office of the Director of Corporate Enforcement (ODCE) as a stand-alone agency.
The General Scheme of the Companies (Corporate Enforcement Authority) Bill 2018 to establish the ODCE as a stand-alone agency was published on 4 December 2018. The General Scheme is currently subject to pre-legislative scrutiny by the Oireachtas Joint Committee on Business, Enterprise and Innovation.
Changing the structure of the ODCE from an office to a statutory agency will provide greater autonomy to the agency in relation to staffing resources and ensure it is better equipped to investigate increasingly complex breaches of company law. Sourcing of expertise and specialist staff, such as forensic accountants, will be enhanced under the agency model.
The establishment of the ODCE as a stand-alone agency is intended to:
- Enhance the ODCE’s independence, by providing it with more autonomy, particularly the ability to recruit the required specialist skills and expertise;
- Build on its existing expertise and experience;
- Strengthen its capability to investigate increasingly complex breaches of company law; and
- Build on the organisational and procedural reforms that have been implemented.
The General Scheme of the Companies (Corporate Enforcement Authority) Bill 2018 also introduces new, or develops existing, powers and investigative tools for the new Authority.
These are –
- A provision on the admissibility of written statements (Head 45);
- Power for the Authority to request that a person acting as a liquidator provide evidence to it that he or she is qualified to act as a liquidator in accordance with the requirements of the Companies Act 2014 (Head 41);
- New grounds to apply to the Courts for an Order to restrict a person from acting as a director in winding-up situations (Head 38). This is intended to address the situation where a director does not conduct an orderly winding up of a company.
My Department is also working with the Department of Justice and Equality with a view to giving the new Authority a power under the forthcoming Communications (Retention of Data) Bill to apply directly to the courts to retain specified telecommunication records for an investigation.