Mr. Justice John Quirke:

If I may, I will call on my colleague to assist me in regard to each project. The first project we are recommending concerns corporate offences and regulatory enforcement. Members will not be surprised by the inclusion of this project within our proposed programme. The issues of corporate offences and enforcement were given considerable attention during our annual conference. That resulted, of course, from the events of recent years.

In the expectation that this may form part of our programme, which expectation I hope is not misplaced, we have taken the liberty of doing a certain amount of research on this matter. We believe, in the first instance, that it is necessary for us to examine our existing laws on the commission of offences, particularly criminal offences, that relate to corporate misconduct or inappropriate corporate behaviour. For that purpose, we suggest we should examine our existing laws, such as they are, to determine whether they are sufficient and adequate. If they are not, we suggest that we should investigate methods by which they can be improved. Alternatively, new laws might need to be enacted to ensure that what has occurred will not recur.

We will be considering the question of corporate criminal offences. For that purpose, we anticipate international consultation with other common law countries, EU countries and the United States, where we believe there is experience. We can give members some information on the position in our neighbouring jurisdiction, which has had similar difficulties. We know there are laws in Australia covering offences that have not been enacted in this jurisdiction or the United Kingdom. I refer in particular to section 184 of the Australian Corporations Act. We can discover whether that has been successful. We note that the authorities in New Zealand do not intend to enact similar legislation, and we need to find out why.

There is a large range of white-collar criminal offences in the statute books in various parts of the United States and there are federal offences. We would like to investigate whether these particular offences are effective in regard to the appropriate conduct of corporate law. We intend to examine this in considerable detail. We will also examine the question of deferred prosecution agreements, which the members may know about. They are in force in parts of the United States. The Federal Government of the United States operates with reference to that particular mechanism, which indicates that a party that has engaged in inappropriate corporate conduct may be prosecuted. The prosecution may be deferred if the party under investigation co-operates with the prosecuting authority, is of assistance and, perhaps, co-operates with regard to information concerning other potential prosecutions. At the conclusion of that process, the party concerned may have the prosecution deferred, dependent upon the nature and level of co-operation provided to the state. We have considered this type of system and would like to do so more carefully. We believe, in a very preliminary manner, that if it were to be adopted in this jurisdiction, it would certainly require significant judicial oversight, for all sorts of reasons with which members will probably be familiar.

I am very much summarising what we are doing and what we intend to examine. We will examine whether corporate offences of a criminal nature are in existence in our jurisdiction. We know, for instance, that there is no offence of reckless trading and we will examine whether there should be. We will examine what sorts of offences are in force in other jurisdictions and whether we should enact legislation that would make certain conduct a criminal offence. We will examine other types of remedy, such as deferred prosecution agreements. That is the first part.

The second part we would like to look at is the question of regulation. In that respect, we had some assistance during our conference in December from the Office of the Director of Corporate Enforcement, and also from the then regulator, Mr. Matthew Elderfield. We believe that the whole question of the regulation of banking and financial institutions, and corporations generally, needs to be considered and investigated to see if it is adequate. Mr. Elderfield was certainly of the view that administrative sanctions of one kind or another could be helpful in some circumstances and perhaps more appropriate and useful than criminal sanctions in the sense that they could be more readily dealt with. They might not be as difficult to prove and might be less expensive than a full criminal prosecution. In that respect, we are talking about potential financial penalties and reputational sanctions in what is known as naming and shaming, and also what is called the identification principle. We can consider sanctions of that kind, which may or not have potential drawbacks or questions associated with them. However, we would like to examine whether regulation of financial institutions and corporations generally could be improved by whatever methods, including the enactment of corporate powers for regulators to impose administrative sanctions.

The third part of this project is an examination of whether regulators generally should be provided with powers of a particular kind. By that we mean not just regulators dealing with financial institutions, banks or corporations but also the Medicines Board, the Commission for Energy Regulation and all sorts of other regulators. We must examine whether it is feasible, possible or desirable to enact legislation which would confer particular powers upon all sorts of regulators - possibly identified regulators, but a large number. As far as I am aware, the only regulators who have the power to impose administrative sanctions are the Central Bank and the Revenue Commissioners. Other regulators do have different types of powers but not the power to impose administrative sanctions.

Those are the three limbs of the project. I am explaining this in a general fashion and am open to correction by my colleagues if I have misstated anything, but that is roughly what we are examining as regards that particular project. Does the Chairman wish me to continue?