Mr. Tom O'Malley:

I agree with that, but one comment I would make is that when one analyses a lot of the cases that have come before the courts here and elsewhere - there have been a number of prosecutions over the years arising from the matter mentioned by Deputy Pearse Doherty - one of the problems is that it can be quite difficult to affix responsibility to individuals within organisations. If responsibility is diffused, as by necessity it is in a very large organisation, whether it is a commercial or public one, it can be quite difficult to affix blame to anybody.

It is difficult even to affix sufficient suspicion to a person to justify a prosecution to begin with. While there is no magic solution to this, the best way forward, as Mr. Byrne said, is to include recklessness as a sufficient mental element for the crime. In other words, the law as it stands requires the prosecution to prove that a person acted intentionally, which means it was his or her specific purpose to bring about a specific result, or knowingly acted in the sense that he or she knew exactly what was being done and still intended to bring about the result. If that were broadened out to include recklessness, a higher standard of care or level of responsibility would be imposed on people to ensure they did not take unjustified risks. That is what recklessness is about. It is about the taking of unjustified risks. The word "unjustified" is very important in that context. As Mr. Byrne pointed out in his opening statement, a major challenge we have to meet and which everyone must address in the context of corporate regulation is to strike an appropriate balance between encouraging enterprise and legitimate risk taking on the one hand and ensuring wrongdoing is outlawed on the other. Hopefully, the concept of recklessness we recommend will strike an appropriate balance. Certainly, it is well worth consideration on the part of the Legislature.