Mr. Raymond Byrne:

I can certainly start to answer the Deputy's question. I am sure Mr. O'Malley will have something to say about this issue as well. An amendment to the 2001 Act would not be necessary. I referred in my opening statement to a victim. The way in which the current offence is defined means it does not necessarily have to be the case that an actual loss needs to have occurred. Deception does not necessarily have to involve a loss. The potential for a loss is the relevant factor. In particular, that might arise in the context of activities where it could not be established that there was a loss. I was indicating in the context of the amendments that in cases of what might be defined as deception for these purposes, it would be sufficient to establish that there was a conscious disregard of the risk of causing a loss or creating a profit. This would be sufficient to establish a defence.

The commission examined the provisions in the UK and Australia in detail. We recognise that the former Governor, Professor Honohan, made a suggestion with regard to the UK offence of engaging in reckless activity that might cause a bank to fail. It focuses specifically on a banking failure. The commission examined that suggestion in detail. I would like to comment on the detail of that offence. It appears that there would be a very high burden on the prosecution to establish how it could be that a particular act or series of acts by senior managers within a bank actually caused that bank to fail. The commission felt that this was a particularly high burden in the context of this particular offence.

It may very well be that that offence would be suitable, but in the analysis that the commission carried out, it felt that the burden on the prosecution would be quite a high one. In relation to the Australian example, there certainly is an offence that describes itself as reckless trading but it would appear that in practice in Australia, insofar as that provision is used, it really is related to circumstances where there is intentional or knowing fraud. Therefore, while it appears to address the question of reckless trading, in practice it appeared to the commission, insofar as we could see what was happening in Australia, to be related to intentional or knowing behaviour. That is the reason, in a sense, that we came back to looking at the 2001 Act, which is quite wide in scope and, therefore, would address many issues, obviously in the banking context but also in wider contexts where one might not necessarily be talking about a banking failure. That was the analysis.