Tuesday, 27 February 2018

Ceisteanna (366)

Maurice Quinlivan

Ceist:

366. Deputy Maurice Quinlivan asked the Minister for Business, Enterprise and Innovation the number of persons brought to court by the Office of the Director of Corporate Enforcement in each of the years 2012 to 2017 and to date in 2018. [9815/18]

Amharc ar fhreagra

Freagraí scríofa (Ceist ar Business)

Court proceedings initiated by the ODCE in the years 2012 to 2018 are set out in the following table:

2012

2013

2014

2015

2016

2017

2018 to date

No. of persons (individuals and companies) subject to Court Proceedings Initiated by ODCE

31

37

28

6

10

4

0

The table above reflects the total number of persons (both individuals and companies) against whom the ODCE has initiated Court proceedings since 2012. This includes cases

- where prosecutions were taken before the Circuit Criminal Court by the DPP on foot of files submitted by the ODCE;

- summary prosecutions taken directly by the ODCE in the District Court;

- disqualification applications made by the ODCE in the High Court;

-other Court actions taken by the ODCE or which the ODCE was otherwise a party to.

In addition to these Court actions initiated by the ODCE, the Office also responded to several other Court actions initiated by other parties. For example, the Office has responded to a number of applications for relief from Restriction Orders previously made by the Courts.

The lower numbers in more recent years are attributable to two principal factors.

Firstly, as has been detailed in previous responses, the ODCE’s enforcement strategy in recent years has been to concentrate its resources on investigating more serious indications of wrongdoing the result of which is, typically, the submission of a file to the Director of Public Prosecutions (DPP) for consideration. By definition, these investigations, when compared with District Court prosecutions (which make up the bulk of the earlier years’ numbers):

- are substantially larger in scale;

- are far more complex;

- are substantially more labour intensive, particularly as regards Garda and professional resources;

- typically involve the issuing of multiple Production Orders to multiple parties;

- typically involve multiple possible offences over multiple years;

- are prone to give rise to novel issues of law, for example, the interaction between criminal investigation and individuals’ privacy rights;

- typically involve substantial volumes of documents (often into thousands of documents from multiple sources in both hard copy and electronic form) and significant numbers of witnesses.

As such, investigations of this nature, for obvious reasons, take considerably longer to bring to a conclusion than is the case with District Court prosecutions. In that context, it is also important to bear in mind that, as has also been detailed in previous responses, in the case of files referred to the DPP, it is the DPP and not the ODCE that takes the decision as to whether to direct charges. Therefore, the matter of direction of charges on indictment is entirely outside the control of the ODCE.

Secondly, on legal advice received from Senior Counsel following two High Court judgements in disqualification applications brought by the ODCE in 2014, the ODCE suspended that programme of activity pending an appeal by the ODCE to the Court of Appeal. In 2016, the Court of Appeal overturned the decision made by the High Court in one of these cases. Based on the decision in the Court of Appeal, the Office has recently recommenced its programme of seeking the disqualification of directors in appropriate cases. However, many of these are now being dealt with by way of undertakings rather than Court applications and, as such, the effect of the undertakings regime introduced by the Oireachtas in the Companies Act 2014 will be to reduce the number of people having to appear before the Courts, thereby freeing up Court time for other matters and reducing the associated costs to the individuals concerned.

In addition to the Court actions initiated by the ODCE, nearly 1,000 company directors have been restricted or disqualified on foot of Court applications made by liquidators over the same period. In every one of these cases, the ODCE has first reviewed the circumstances of the case and, having examined the liquidator’s report, has determined that the liquidator should not be relieved of the obligation to make such applications.

Finally, I would note that not all enforcement actions taken by the ODCE result in Court applications. Rather, the ODCE operates a graduated approach towards enforcement, i.e., where deemed an appropriate response, indications of non-compliance are dealt with, inter alia, by way of warning, statutory direction (i.e., directing compliance) etc.