The information requested by the Deputy includes data going back 19 years to 2001 when the Office was first established and therefore it is not readily available in the format requested. The ODCE will require further time to allow it to compile and tabulate the relevant data. Information for 2019 and up to 27 November 2020 is provided in tabular form below. The remaining information as requested is being collated and I will provide this information to the Deputy no later than 15th December 2020.
Information on cases investigated, number of cases closed without prosecution, number of cases closed with a successful prosecution and the number of cases that remain active and open in the years 2019 and to 27 November 2020 are as set out in tabular form below:
|
-
|
2019
|
to 27 November 2020
|
|
Cases investigated
|
402
|
262
|
|
Cases closed without prosecution
|
430
|
209
|
|
Cases successfully prosecuted
|
2
|
0
|
|
Cases active and open at end of year
|
194
|
247
|
Cases for the purposes of this question exclude liquidators’ reports and include:
- All files opened in response to the receipt of a mandatory or voluntary report;
- All complaints;
- All issues identified internally.
It is important to note that the number of investigations per se does not represent the totality of the work of the ODCE, firstly because of the volume of liquidation cases and secondly because not all investigations result in a prosecution. As will be seen from the ODCE’s Annual Reports, complaints are not always relevant to the remit of the Office but where they are, the matter is investigated. Only a small subset become investigations for the purposes of enforcement by prosecution.
Not all investigations are of a criminal nature and the ODCE policy is to seek rectification of breaches in the first instance, where the matter is appropriate for such action. Not all enforcement actions taken by the ODCE result in Court applications. Rather, the ODCE operates a graduated approach towards enforcement. Where it is deemed an appropriate response, many issues can be addressed by exercise of powers without the necessity of bringing issues to the Courts for determination. This might include for example, production of registers and regularising breaches for the director loan provisions, which in 2019 secured the rectification on a non-statutory basis, of suspected infringements of the Companies Act 2014, in relation to Directors’ loans in 23 cases, to an aggregate value of €27.2m approximately.
The ODCE took a decision in recent years to concentrate its resources on more serious and complex investigations, the result of which is usually the submission of a file to the Director of Public Prosecutions (DPP) for consideration, as opposed to a summary prosecution. It is important to appreciate that the purpose of a criminal investigation is not to secure a conviction. Rather, the purpose is to establish the facts. Thereafter, it is a matter for the DPP to determine, having regard to the facts and to potentially relevant offences, whether the direction of charges is appropriate and in the public interest.
In terms of prosecutions, the Director of Corporate Enforcement is only statutorily empowered to initiate summary prosecutions (i.e. prosecutions of relatively minor offences in the District Court). In 2020 the ODCE had two such cases which were closed without prosecution and one case which received directions to prosecute.
More serious alleged breaches of company law are prosecuted on indictment in the Circuit Court and only the Director of Public Prosecutions (“DPP”) can direct that charges be preferred on indictment.
Section 949(3) of the Companies Act 2014 provides that the Director of Corporate Enforcement shall be independent in the performance of his statutory functions. I, as Minister for Enterprise, Trade and Employment have no direct function in such matters.
As the Deputy will be aware, I am progressing legislation in this area as part of the Government's work on white collar crime. Establishing the ODCE as the Corporate Enforcement Agency will give the Director greater autonomy and flexibility in terms of the ability to recruit staff with the necessary skills mix and depth of experience and will provide the Director with greater flexibility to adapt if the workload expands.
