Government approves text of White Collar Crime Bill
The Minister for Justice and Law Reform, Mr. Brendan Smith, today announced that the Government had approved the text of the Criminal Justice Bill 2011.
The purpose of the Bill is to facilitate the more effective investigation of white collar crime and to reduce associated delays. It takes into account a number of proposals made by those involved in the investigation and prosecution of these type of offences.
Priority drafting of the Bill was approved by the Government on 14 December 2010 and it was intended to publish and enact the Bill during the life of the present Government. However, events since then mean that objective cannot be achieved and with today’s dissolution of the Dáil, it has been decided not to formally publish the Bill.
The Bill was being targeted at serious and complex white collar crime offences attracting a penalty of 5 years imprisonment including fraud, money laundering, financial, competition and company law.
The proposals included a new system to make more effective use of detention periods. Under the new system, it will be possible for persons arrested and detained for questioning to be released and their detention suspended so that further investigations can be conducted during the suspension period.
In addition any person with relevant information would be required to answer questions and provide information in the investigation of these offences. New measures relating to how detailed information is to be provided to assist in the investigation and prosecution of complex crimes were also included.
Minister Smith said "Our laws must be robust and when they require change they must be changed. We have already significantly altered laws relating to gang crime. Today 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."
It will be a matter for any new Government to decide if they wish to pursue these proposals.
1 February 2011
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.