White Collar Crime And The New Criminal Justice Bill 2011 by Annette J Dunlea
Within the field of criminology, white-collar crime has been defined by Edwin Sutherland as “a crime committed by a person of respectability and high social status in the course of his occupation”. The Irish Government wants to make it impossible for white-collar workers “to play fast and loose with the economic and financial system” without being punished.To date no one has been prosecuted for white-collar crime by the corporate watchdog has been jailed in the 10-year history of the office.Sending criminals to jail “does not happen in company law” an official at the Office of the Director of Corporate Enforcement (ODCE) admitted.The ODCE, which last week warned that it could take up to two years before any prosecutions arise from its investigation into Anglo Irish Bank, said that it had referred only five cases to the Director of Public Prosecutions since 2001.The revelation comes despite warning about the threat posed by white-collar crimes.There had never been a successful prosecution for insider trading or market abuse in Ireland.This is about to change. We need legislation against white collar crime as we can see by recent events it hurts our economy and international reputation.
Ireland’s Minister for Justice, Alan Shatter, published legislation recently, which will impose sentences of up to five years for those who fail to assist a white collar crime investigation.The Minister too unveiled the new legislation, it is called The Criminal Justice Bill 2011.The Bill involves new legislation which will allow Irish police to break up the 24-hour period of detention into segments for those detained for serious offences.The Bill also contains powers to compel witnesses to provide information.The new legislation means suspects can be temporarily released after a certain period to time to facilitate investigation.It focuses on “specified serious and complex offences attracting a penalty of at least five years’ imprisonment”. It includes offences in banking and finance, company law, money-laundering, fraud, corruption, competition, consumer protection and cybercrime.The primary purpose of this Bill is to introduce a requirement on a court, before which an offender stands convicted of an offence for which a sentence of up to six months imprisonment would be appropriate, to consider imposing the alternative sentence of a community service order.There will be no additional costs in implementing this Bill. The management of the expected increase in community service orders will be met from existing resources within the Probation Service.It is envisaged that there will be savings for the exchequer in the medium to long term as greater use is made of the more cost effective community service scheme over imprisonment.Discussing the Bill, Minister Shatter said: “When in opposition I was hugely concerned at the length of time the investigations were taking, into Anglo Irish and the other banking issues related to it. On my first day in the department I inquired as to the progress being made and where there were areas of difficulty.”The Minister insisted “there will be no impunity for those who engage in white collar crime” and he promised “if more is needed more will be done”.Mr Shatter said “we must find ways to ensure that no matter how complex the crime, no matter how important, wealthy or influential the wrongdoer may be, he or she must be brought before the courts”.
Green Party spoksman, Dan Boyle said that “while much public anger has a political focus, and much of this is justified, the inability to bring to justice those whose self interest and greed so undermined our national wellbeing, is something that must end – and end soon”.Labour TD Joan Burton said the “overhaul of legislation dealing with white collar crime is absolutely urgent and it’s long overdue”.In a statement, the Green party chairman said “among the many reasons why there has been no action taken against known individuals working in Irish financial institutions – whose greed and recklessness have brought us to where we are – is that properly defined legislation seems to be lacking in defining this kind of white collar crime and fraud”.”I believe that there should be an offence of financial treason, carrying a mandatory sentence and huge fines, that would be applicable to defined individuals working in financial institutions licensed by the Irish State. There would be convictions on foot of any decision made knowingly by such individuals that result in reputational damage for the country, an unacceptable economic cost, or a loss of economic sovereignty.” We were focusing on the powers required to tackle very complex crime. This new Bill follows last year’s request to the Garda Commissioner and others to suggest proposals in relation to new laws he believes are required on foot of the current Garda enquiries in relation to bank fraud and financial irregularities.
Mr Shatter said the Government was committed to restoring people’s faith in our legal system “by ensuring that action is taken to end the perception of impunity for the white-collar criminal”.The Bill is targeted at specified “serious and complex” offences attracting a penalty of at least five years’ imprisonment, in such areas as banking and finance, company law, money laundering, fraud, corruption and cyber-crime.Once it is enacted, the legislation can be used in current investigations in respect of which no prosecution has as yet begun.The existing 24-hour maximum period for Garda questioning will be broken into segments and allow for further investigation while the suspect is released.The extent of data and the complexity of recent investigations have shown that it is not always possible to complete questioning and check facts in one period of detention.There has also been a reluctance on the part of potential witnesses to make statements assisting the Garda in its current investigations.
Consequently, the Bill provides for Garda applications to the District Court requiring witnesses (companies as well as individuals) to provide information, answer questions and make statements.Another source of delay has been the lack of indexing and certification of the vast amount of documentation supplied.The Bill provides that the District Court may issue an order that documents be identified and categorised. Access to documents can also be severely delayed by claims of legal privilege.The Bill provides that an application may be made to the District Court to resolve that issue.There is a new offence whereby failure to disclose information to the Garda on a relevant offence will be punishable by a fine or five years’ imprisonment or both.“Relevant offences” are those punishable by imprisonment for a period of five years or more which are specified in the schedule to the Bill, or by ministerial order.
Under the bill:
- Gardaí can seek court orders compelling persons to produce documents or information.
- Persons who fail to comply with such orders or who provide false or misleading information will be guilty of an offence.
- Gardaí can seek a court decision on claims that documents or information cannot be disclosed due to legal privilege.
- People who have -information about a crime will be obliged to report it to the gardaí.
- People with such information who fail to do so will be guilty of an offence.
The intention is to ensure that the new procedures and powers provided for in the Bill will speed up both future and current investigations and prosecutions.
The proposals in the Bill include:
• A new system to make more effective use of detention periods. This will allow persons arrested and detained for questioning by the Gardaí to be released and their detention suspended so that further investigations can be conducted during the suspension period.
• New powers for the Garda Síochána to apply to court for an order to require any person with relevant information to produce documents, answer questions and provide information for the purposes of the investigation of relevant offences. Failure to comply with such an order will be an offence.
• Measures relating to how documents are to be produced to the Gardaí. These measures are aimed at reducing the delays associated with the production of large volumes of poorly ordered and uncategorised documents to the Gardaí in the course of their investigations.
• Measures to prevent unnecessary delays in investigations arising from claims of legal privilege.
• The creation of a new offence, similar to the former misprision of felony offence, which relates to the failure to report information to the Gardaí.
Minister Shatter added that he is availing of the opportunity presented by the Bill to clarify two matters relating to the questioning of detained persons generally: the circumstances in which a detained person may be questioned between the hours of midnight and 8 a.m.; and the extent of the right of a detained person to have access to legal advice prior to questioning.It is now impossible for white-collar workers “to play fast and loose with the economic and financial system” without being punished.The law is now clearer, easier to access and where necessary, tougher, in this area.” It will provide blanket protection for whistleblowers in any job reporting suspected corruption. It will provide protection to every person, in any sector, reporting suspicions of corruption in good faith,”