Thursday, 31 January 2019

Ceisteanna (5)

Mick Wallace


5. Deputy Mick Wallace asked the Minister for Business, Enterprise and Innovation if she will reconsider her decision not to publish the original ODCE report into the collapse of a trial (details supplied); and if she will make a statement on the matter. [4679/19]

Amharc ar fhreagra

Freagraí ó Béal (7 píosaí cainte) (Ceist ar Business)

This question relates to the Minister's refusal to date to publish the original report of the Office of the Director of Corporate Enforcement, ODCE, into the collapse of the Seán FitzPatrick case. The Minister has told me she would be breaking the law if she published the original report. I wonder if she could tell us which law she would actually be breaking. So many questions remain unanswered following the collapse of the Seán FitzPatrick trial. I find it worrying that the Government seems content to sweep it under the carpet.

The advice of the Attorney General was sought on the publication of the report of the Director of Corporate Enforcement prepared under section 955(1)(a) of the Companies Act 2014. Because of section 956 of the Companies Act 2014 the Minister for Business, Enterprise and Innovation is prohibited from publishing reports prepared pursuant to section 955 of the Act. This advice is very clear. It means that I will be breaking the law if I publish the report that the Deputy is referring to.

The Companies Act 2014 contains strict confidentiality obligations on information in the possession of the director. This is because there is a public interest in ensuring that ongoing and future investigations are not compromised by the disclosure of details of an individual investigation and the investigative process itself.

However, while it is not possible to publish the report itself, an account of the investigative shortcomings identified by Judge Aylmer was published on 4 December 2018 on the website of my Department. The account sets out the factors which led to the investigative shortcomings, including the need for a broader skills base, a greater range and depth of knowledge and experience of criminal prosecutions within the office and a greater appreciation of the necessity to employ appropriate procedures and manage risk. Now that we know the factors that led to the shortcomings, our focus has shifted to ensuring we use the lessons of this investigation, note the steps already taken to address them and identify further measures to enhance the capacity of the ODCE to tackle corporate wrongdoing.

Since the time of the investigation, the director has implemented multiple reforms within the ODCE, including staffing and procedural reforms that address many of the issues that led to the investigative shortcomings outlined by Judge Aylmer. Further measures to be taken include the establishment, as announced by Government in November 2017, of the Office of the Director of Corporate Enforcement as an agency. This will provide the office with greater autonomy in respect of staffing resources and ensure it is better equipped to investigate increasingly complex breaches of company law.

The truth is that we are being left in the dark on many of the issues surrounding this. I wish to God that the Government would stop hiding behind the Attorney General. The narrative has been put forward following the collapse that it was all the ODCE's fault. It was said that the mistakes made by the ODCE were due to funding issues and a lack of forensic accountants, and that these issues have now been solved as the ODCE has been awarded an extra €1 million in funding. That all sounds great but it does not address the fact that there are very serious shortcomings and mistakes on the part of two other State bodies that do not suffer from funding difficulties, namely An Garda Síochána and the DPP. On the second day of the first trial, Judge Mary Ellen Ring stated that there is no doubt that the proceedings implied in the production of the witness statements differ significantly from the process normally used by gardaí in the course of a Garda investigation.

On the twenty-eighth day of the first trial it was also stated that there had been no good explanation offered to the court as to why there was not more Garda involvement, in the ordinary way, in the taking of the statements of the two witnesses in question. The methods used by the ODCE in the taking of witness statements were the main reasons both trials collapsed, as the witnesses were effectively coached. Judge Mary Ellen Ring asked why there was not the ordinary level of Garda involvement. Will the Minister address this question? She cannot blame it on funding, as has been done in respect of the ODCE. Does the original report, which the Government does not want to publish, address these questions?

The account clearly shows that the ODCE investigation, in this instance, did fall below appropriate standards. The investigative shortcomings relating to the ODCE point to the need for a broader skills base, a greater range and depth of knowledge and experience, and a greater appreciation of the necessity to employ appropriate skills and experience for a case of this complexity. This was a complex case. Many positive steps have been taken by the office since then. In 2008, for example, the ODCE had no forensic accountants or digital forensic expertise. Today it has seven forensic accountants, a digital forensic specialist and a digital forensic laboratory, as well as two enforcement portfolio managers and two enforcement lawyers.

In 2008, civilian staff in the ODCE took the lead role in obtaining witness statements. None of those people had any training or experience in taking such statements. Since then, specialised training has been provided in the Garda training college in Templemore for ODCE staff to assist them with statement taking, the interviewing of witnesses, the preparation of files for the DPP, exhibits handling and disclosure. Procedural changes have also taken place so that all criminal investigations are now led by members of An Garda Síochána assigned to the ODCE. There has, therefore, been much improvement since this took place.

This is an important issue and I am sorry for cutting across the Minister but the time limits mean I must. I call Deputy Wallace.

I am not asking the Minister about the ODCE; I am asking her if there is anything in the original report dealing with how the gardaí and the DPP behaved. Will she explain how the DPP decided to pursue a second trial, following the collapse of the first trial? The DPP was aware of the shortcomings in the investigation as far back as 2010. It should not have even allowed the case to go before Judge Mary Ellen Ring, but allowing it to progress a second time was unforgivable. How much money was paid to barristers during the second trial? Was it multiples of millions of euro? The Minister has called it the most expensive trial in the history of the State.

Will she address any of these questions in respect of the DPP? Similar to the Garda, the DPP does not suffer from a lack of funding. It seems, however, that the ODCE, and its lack of funding, has been the scapegoat for the collapse of the FitzPatrick trial. The DPP and the Garda Síochána, however, as far as I can see, have questions to answer, and perhaps the answers are in the original report. Either way, I cannot believe it. The Fine Gael Party used to say that it was the party of law and order. Now, it is more like the see no evil, hear no evil school of politics.

I am not going to make any comments on what the DPP does. That is a matter for it. On what falls under my remit, which is the ODCE, it has made many changes, the correct people have been employed and it is now well resourced. I will introduce legislation shortly so that the ODCE will become a stand-alone agency. That will give it much more power in respect of recruiting the people it needs and the skill sets it needs to attract. I am satisfied that I have done everything I can in respect of resourcing and supporting the ODCE in the job it does. I know the Deputy would like to see the report. I would like to have been able to publish the report but unfortunately, due to the law, I cannot. That is the situation. I cannot break the law and I cannot publish it.