Catherine Murphy (Kildare North, Independent)
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Question 55: To ask the Minister for Justice and Equality if he considers it necessary to amend the combined terms of section 19 and the Schedule to the Criminal Justice Act 2011 whereby all thefts, as opposed to those in the area of white collar crime, appear to be criminalised by section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001; his views that a change is necessary; the options available to make that change; the way he plans to proceed; and if he will make a statement on the matter. [24998/11]

Alan Shatter (Dublin South, Fine Gael)
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The main purpose of the Criminal Justice Act 2011, as I stated in the Dáil when the legislation was being enacted, is to facilitate the more effective investigation of white collar crime and to reduce associated delays. The Act is targeted at specified serious and complex offences attracting a penalty of at least five years imprisonment, including offences in the areas of banking and finance, company law, money laundering, fraud, corruption, competition, consumer protection and cyber-crime. These offences are listed in Schedule 1 to the Act. The Act also provides that further offences can be specified as relevant offences by ministerial order.

Section 19 of the Act provides for the offence of withholding information. The offence will apply to a person who has information which he or she knows or believes might be of material assistance in preventing the commission of a relevant offence or in securing the apprehension, prosecution or conviction of another person for such an offence. A person 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.

I accept that the offence of theft under section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 can be very simple and its investigation may not need the usage of the powers in the Criminal Justice Act 2011. I do not envisage that these powers will be required in simple cases prosecuted in the District Court.

Theft can also be complicated, however, and my advice from the Garda Síochána with regard to the offence of theft is that in some cases theft investigations can be very complex. There may be cases where prosecutions may involve multiple allegations of offences, which can include both theft and fraud. In those circumstances, it is appropriate that the powers under the Criminal Justice Act 2011 are available. It is in the public interest that they be available to the Garda so there is no artificial difficulty where the investigation involves multiple offences and where these powers are utilised. It was necessary to take an all-embracing approach to theft and fraud offences in the 2011 Act to ensure that the Act did not create an artificial barrier to an appropriate prosecution being taken on a future occasion.

Catherine Murphy (Kildare North, Independent)
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What prompted me to put down this question was an article written by the former Attorney General and Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, who is not somebody I would normally quote. I am sure the Minister, Deputy Shatter, saw the article. Mr. McDowell made some very relevant points, in particular that the offence will clearly apply to all thefts, which, if it is the case, would be a very unintended consequence.

The Bill generally is one which most people, myself included, support. Did the Minister consider the particular aspect of a wider application of the reporting of theft than was in fact intended? What kind of advice did he get when he was putting together the legislation? If it is a question that it applies much more broadly, then, as Mr. McDowell stated in the article, we could end up with a lot of case law which will possibly have a different result than was intended.

Alan Shatter (Dublin South, Fine Gael)
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I am aware of the article to which the Deputy refers. It is worth stating that in regard to the section 19 offence and the Act in general, investigations and prosecutions will be subject to the exercise of discretion in the usual way by the Garda Síochána as to the appropriateness of such investigation and prosecution. In addition, an important safeguard in regard to the usage of the Act in section 19 in particular is that a direction by the Director of Public Prosecutions will be required before a prosecution under that section can proceed. This is the same situation as exists in regard to the similar offence of withholding information under section 9 of the Offences Against the State (Amendment) Act 1998 where the power to prosecute under that provision is used only occasionally and where required.

I believe the manner in which we dealt with the provisions in this Act and the extensive application open to it in regard to serious offences is of considerable importance. In the context of dealing with illegal conduct of a criminal nature in the area of what may be either fraud or theft - there can be a crossover of the boundaries between the two - unnecessary difficulties could arise both in the conduct of an investigation and in gaining access to important documentation and information, had theft been excluded from the ambit of the Act. I am satisfied it was necessary to include it and it was the wish of the Garda Síochána that it be included.

Catherine Murphy (Kildare North, Independent)
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Were this provision to be used in a wider context than was intended, with what mechanism or how quickly would the Minister revisit it?

Alan Shatter (Dublin South, Fine Gael)
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I do not expect it to be used in a wider context. I certainly do not expect it to be a section that will be utilised in the context of a simple theft case which gives rise to a possible prosecution in the District Court.