Select Committee on Enterprise and Economic Strategy díospóireacht -
Wednesday, 19 Jun 1996

SECTION 30.

Mr. E. O'Keeffe

I move amendment No. 8:

In page 14, lines 7 to 9, to delete subsection (3).

This section deals with fraud. If not having intent to defraud was a good defence, everyone would have a good defence. There have not been many prosecutions for fraud, if intent must be proved as well as fraud it would be very difficult and the DPP probably would not even try. This section represents a cop out as regards penalties. Very few prosecutions have ever been proved in the area of fraud. We had the famous Shanahan stamps case of Paul Singer. There is a weakness and I ask the Minister to withdraw the subsection and include my wording.

Mr. Rabbitte

Deputy O'Keeffe has proposed the deletion of subsection (3) of section 30 which provides offenders under the Bill with the rather limited defence that there was no intention to defraud when the offence was committed. It is considered that since the Bill and standardisation in general deal with matters which can be very technical and complicated, such a defence is necessary and desirable.

It is possible for different standard marks to apply to the same product. The Irish mark of electrical conformity and the CE marking required under the low voltage directive would be an example, particularly when such a product was part of another machine covered under the machinery directive. It would not be hard to inadvertently incorrectly mark a product. This subsection deals with such cases and the onus of proof is placed firmly on the offender. For that reason I cannot accept the Deputy's amendment.

The advice of the Attorney General is that it is reasonable this kind of defence should be open to somebody who, in a complicated area, could inadvertently be in breach without intent to defraud. The opinion of the Attorney General's Office is that without it, the legislation could be open to challenge.

Mr. E. O'Keeffe

Challenge before the Bill is enacted? It is very hard to prove intent to defraud as well as proving fraud. I can give one glaring example from the 1950s or 1960s. It has been pointed out that a tightening up is necessary there. If not, that loophole is open to contradict the views of the Attorney General.

Mr. Rabbitte

The onus is on the person concerned to prove that he did not intend to defraud. It is a severe onus which is difficult to discharge. It is tantamount to a presumption of guilt until he proves otherwise.

Chairman

Is the amendment withdrawn?

Mr. E. O'Keeffe

There is no point in pressing it because I will not win the vote but there is room for the deletion of the subsection and inclusion of what I tabled. That is the legal opinion available to me. Members of the legal profession have approached me on this matter and pointed out that very few fraud cases have been proved. This is a technical area and one in which there are weaknesses. I accept the Minister's point of view, but there is a different legal opinion.

Mr. Rabbitte

This section did not emerge from my office or the Department. It was the considered advice of the Attorney General's office that this manner of safeguard should be inserted. Otherwise the legislation would have been open to challenge. It is tantamount to a presumption of guilt until it is proven to the contrary and it is a reasonable safeguard in all the circumstances.

Chairman

Is the amendment being withdrawn?

Mr. E. O'Keeffe

With great reluctance.

Amendment, by leave, withdrawn.

Section 30 agreed to.

SECTION 31.

Question proposed: "That section 31 stand part of the Bill."

Mrs. O'Rourke

Sections 31 and 32 deal with the offences which will be created when the Bill is enacted. Section 31 mentions a fine not exceeding £1,500 which will be imposed on a person and I presume this means somebody who pretends to have a standard. Is that the crime?

Mr. Rabbitte

It could be misrepresentation of any type.

Mrs. O'Rourke

I thought it applied to somebody who told the world he had a standard of proficiency which he did not have.

Mr. Rabbitte

Yes. We just discussed the three sections to which the Deputy referred a moment ago. It refers generally to misrepresentation.

Mrs. O'Rourke

A fine of £1,500 is not large on a firm which engages in seeking orders from Europe and states it has the ISO 9002 standard, or whatever is the coinage of the day, when it does not have that standard. Such standards convey considerable commercial value on the firm in question and if the misrepresentation envisaged in the section is that a firm stated it had a standard which it did not hold the fine should be much more than £1,500. The firm may have gained commercially in transactions to a much higher value. It is a small fine for pretending to have a valued mark of assurance.

Mr. Rabbitte

I draw the Deputy's attention to the point that it is £1,500 or imprisonment for a term not exceeding 12 months or both at the discretion of the court. Depending on the gravity of the offence, the judgment of the court could be to impose such a fine and such period of imprisonment. This would cause a person to cool his heels for a while. A second important consideration is speedy and cheap access to justice. The level of fine of £1,500 must apply if the District Court jurisdiction is to be maintained. It is important to maintain access to the District Court and give it jurisdiction in such matters.

Mrs. O'Rourke

I encountered this matter quite often when I dealt with health and safety in the Department and the fine was approximately £1,500. Difficult cases, in which employers avoided basic health and safety standards, invoked fines of just £1,500. I felt these were ridiculous amounts and I engaged in correspondence with the Minister for Justice, but the District Court fines jurisdiction applied. One wants speedy access to the court to have cases heard, but this means only a limited fine can be imposed. This level of fine will not act as a deterrant.

Mr. Rabbitte

It is a judgment call between facilitating access to the courts under the District Court jurisdiction or making it more expensive with the consequent impact of more severe penalties. My impression is that generally the preferred option is the jurisdiction of the District Court. The court has the discretion to fine an offender £1,500 and impose 12 months imprisonment. This is not something one would trip into lightly. It should not be put outside the jurisdiction of the District Court.

Mrs. O'Rourke

It does not matter what we say; it has no effect. It is soul destroying trying to debate the Bill intelligently with the Minister but finding that everything is put to one side. I am most disappointed.

Mr. Rabbitte

I do not want the Deputy frustrated, but my judgment on the matter is that access to the District Court is most important. Regardless of the Deputy's remarks about the District Court, queuing for the Circuit Court and the consequent counsel costs involved would be more of a deterrent to taking prosecutions under the legislation than will be the case in the District Court. I fervently hold this conviction; it is not that I am being unamenable to the arguments advanced by Deputy O'Rourke.

Mrs. O'Rourke

Is it not then a case for liaison with the Minister for Justice regarding raising the limits in the District Court? I endeavoured to do this in my time in the Department but I did not get anywhere.

Mr. Rabbitte

The Deputy may have a point in that regard.

Question put and agreed to.