Minister Shatter publishes the Criminal Justice Bill 2011
The Minister for Justice, Equality and Defence, Mr Alan Shatter T.D., today published the Criminal Justice Bill 2011.
The Minister said "I am pleased to announce the publication of this Bill which is an important step in delivering on the Government’s strong commitment to tackle white collar crime as set out in the Programme for Government. Publication of this Bill was a priority to be delivered within the first 100 days of Government. We have now delivered on that commitment and it is a vital objective to complete enactment of this ground breaking Bill prior to the summer recess."
The main purpose of the Bill is to facilitate the more effective investigation of white collar crime and to reduce associated delays. The proposals in the Bill are based on the experiences of those involved in investigations and prosecutions of these types of offences, and in particular on the experiences of those involved in current investigations. 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.
Minister Shatter continued: "I am introducing this Bill to deal with issues that are currently causing problems and delaying or potentially delaying the investigation and prosecution of white collar crime. While the complexities of financial crime are challenging for investigators and for prosecutors, this Government is committed to restoring the faith of the people in our legal system by ensuring that action is taken to end the perception of impunity for the white collar criminal. We intend to take strong action to ensure that all those who commit offences, whether they be white collar criminals or otherwise, will be made accountable before the courts. This Bill is an important step in ensuring that the white collar criminal will be vigorously pursued by the authorities of the State."
The Bill is being targeted at specified serious and complex offences attracting a penalty of at least 5 years imprisonment, including offences in the areas of banking and finance, company law, money laundering, fraud, corruption, competition, consumer protection and cybercrime.
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.
The Bill is available on the Oireachtas website - www.oireachtas.ie
Note to Editors
Detention for Questioning
The existing law whereby a person may be detained for questioning by the Gardaí for a specified period will be amended to allow the period of detention to be broken into segments and the person released in the intervening periods. The Gardaí will be able to detain and question an individual for part of the period, release that person while the Gardaí make further inquiries into what was said and then require the individual to return to the Garda station at a later stage for the continuation of his or her detention. 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.
Requirement to make a statement
There has been a reluctance for potential witnesses to make statements assisting the Gardaí in their current investigation. The Bill provides a mechanism whereby an obligation can be imposed on witnesses (companies as well as individuals) to provide information, answer questions and make statements in relation to investigations into relevant offences. The Bill provides for applications to the District Court by the Garda Síochána for orders requiring the production of material or the provision of information (by answering questions or making a statement containing the information) for the purposes of the investigation of a relevant offence. "Relevant offences" are offences punishable by imprisonment for a period of 5 years or more which are specified in the Schedule to the Bill or by Ministerial order. A person who fails to comply with an order will be guilty of an offence. Provision is also made for an offence of providing false or misleading information or statements.
During recent investigations, large numbers of documents have been provided to the Gardaí without any effort to index the material or to certify the material in a manner that would allow their admissibility in court as evidence without the need for witnesses to prove them. The sheer volume of documentation to be sifted has been a source of delay. The Bill provides that where the District Court orders the production of material under that section, it may order the person to identify and categorise the material in a particular manner.
When the Gardaí propose to seize large quantities of documents, access to documents can be severely delayed by claims of legal privilege. The Bill provides that where a person refuses to disclose a document to the Garda Síochána or to allow possession of it to be taken pursuant to a District Court order on the grounds that it is privileged legal material, an application may be made to the District Court for a determination as to whether the document is privileged legal material. This procedure should help to avoid unnecessary delays in the resolution of claims of legal privilege.
The Bill provides for a new offence, similar to the former misprision of felony offence, which relates to the failure to report information to the Gardaí. A person who has information which he or she knows or believes might be of material assistance in preventing the commission by another person of a relevant offence or in securing the apprehension, prosecution or conviction of another person for such an offence, and who fails without reasonable excuse to disclose such information as soon as practicable to the Garda Síochána, will be guilty of an offence. The offence is punishable by an unlimited fine and imprisonment for up to five years or both. A similar offence is contained in section 9 of the Offences Against the State (Amendment) Act 1998 but it is limited to certain serious offences.
Questioning between the hours of midnight and 8 a.m.
The Bill provides that no questioning of a person detained under section 4 of the Criminal Justice Act 1984 may take place between the hours of midnight and 8a.m. other that where (i) the suspect objects to the suspension of questioning or (ii) the member in charge authorises questioning on the grounds that to delay would involve a risk of: injury to other persons; serious damage to property; loss of, or interference with evidence; accomplices evading etc. It will continue to be the case that the period during which questioning is suspended will be excluded from the calculation of the detention period.
Access to legal advice
The Bill provides that no questioning of a detained person may take place until such time as he or she has had access to legal advice (in person or by telephone). This is subject to two exceptions: (i) where he or she has waived the right to consult or (ii) the member in charge has authorised questioning on the grounds that to delay would involve a risk of: injury to other persons; serious damage to property, loss of, or interference with evidence; accomplices evading etc. While the Gardaí already generally adopt this approach legislating will ensure a greater level of clarity on the matter.
The Bill makes provision for the detention clock to stop (subject to a maximum period) pending a solicitor making him or herself available for a consultation. The Bill also provides for a regulation-making power in relation to procedural matters concerning access to a solicitor by detained persons.
Link to the Criminal Justice Bill 2011