Jonathan O'Brien (Cork North Central, Sinn Fein)

Great. The introduction of legislation in an attempt to deal with the growing plague of white collar crime has long been called for by Members on all sides in this House as well as wider society outside this Chamber. The recent collapse of the global economy has kick-started that conversation on white collar crime and how it is sometimes portrayed as a victimless crime.

We can consider recent scandals at an international level or closer to home, such as the failure of the Irish banking system and the revelations from tribunals contained in the Moriarty report. This has caused great anguish among wider society and it has pushed the need for stiffer legislation to deal with white collar crime to the top of the political agenda.

The term white collar crime is often described as a generic term for non-violent crimes, motivated primarily by personal gain, and committed by businesspeople or public officials. While there is no fixed definition of what constitutes a white collar crime, the Department of Justice and Equality defines white collar crime as offences classified as non-violent illegal activities which principally involve traditional notions of deceit, deception, concealment, manipulation, breach of trust or illegal circumvention. People outside the Chamber hear these phrases but to the ordinary person on the street this means fraud, tax evasion, bribery, kickbacks, brown envelopes and political favours to name just a few. The term white collar crime was first coined by Edwin Sutherland to describe the criminal behaviour of an elite class of people. There is a myth that white collar crime is a victimless one, but nothing could be further from the truth. A single act of white collar crime has the potential to destroy a company, devastate families by wiping out their life savings, or cost investors billions of euros or even all three, as in the Enron case.

By its nature, white collar crime can be difficult to investigate and therefore to prove. This Bill proposes to introduce measures whose aim is to assist the Garda Síochána in the investigation and prosecution of this complex area. The introduction of legislation that will once and for all deal comprehensively with white collar crime is essential if this establishment is to restore confidence and credibility in our judicial and political systems. Justice is meant to be blind but if one was to look at the number of people in Irish jails today and study what they are in there for, one could be forgiven for thinking white collar crime is a myth. There is a justifiable, widespread public perception that not enough has been done in the past to tackle white collar crime. That is a view shared by all sides in this House.

This has led to a lack of confidence in our judicial system to deal adequately with white collar crime. Recent comments by Mr. Justice Peter Kelly support this assertion.

He stated: "An apparent failure to investigate thoroughly, yet efficiently, possible criminal wrongdoing in the commercial corporate sectors does nothing to instil confidence in the criminal justice system." I understand the urgency behind the motives of the Minister to introduce this legislation but we must also be careful that people outside the House do not view it as this Chamber rushing to introduce legislation. After all, rushed legislation very often turns out to be poor. This Bill was only published last Friday and we are already discussing it, although only on Second Stage. We must still be very careful to study the Bill and I hope it will not become the norm that we get copies of legislation on Friday and discuss it two or three days later. Nevertheless, I understand the urgency behind the issue.

I commit myself and my party to working with the Minister to ensure the passage of any useful legislation concerning white collar crime in as quick a manner as is possible. I also put on record my personal appreciation of the Minister's comments about possible amendments and I hope we can work together on potential amendments to ensure they are taken on board. We need from the Government a timetable for key white collar crime prevention measures and real legislation to deal with corporate fraud in the State. We need a comprehensive and clear corporate liability for corruption offences and an immunity and leniency programme for certain witnesses who are also accomplices to offences, as this is a necessary weapon against white collar crime.

Mr. Shane Murphy SC recently indicated that we have the weapons for prosecution but we are choosing not to use them, and the Director of Public Prosecutions is reluctant to engage in a general programme that would grant full or partial immunity to informants who expose wrongdoing at banks and financial institutions. The reality is that cases are being built against individuals and not necessarily against companies, even if the company has a case to answer. The OECD working group on bribery recently recommended that Ireland should codify and clarify the liability of legal persons for bribery offences. The identification doctrine whereby the acts of the persons controlling a company can constitute acts of the company is currently insufficient, and in Britain there has been an expansion of the criteria for what constitutes a legal person for the purposes of bribery legislation.

The prosecution of legal as well as natural persons for corruption-related offences will serve as a powerful deterrent against corporate complicity in bribery and corruption. We also need a firm commitment that there will be adequate resourcing for the gardaí in order to investigate and detect offences. Clear sentencing guidelines for corruption-related offences must be introduced and a timetable for the ratification of international conventions against corruption should be announced. Every time we speak in the Chamber I go on about sentencing guidelines because they are crucial in all areas of criminal justice. Companies in the dock must prove that anti-bribery measures employed are taken into account.

Arguments made that non-custodial offences for white collar crimes are preferably based on the notion of restitution alone reinforce the perception that offenders of lower social status are less likely to be treated fairly in comparison to those in higher income brackets and of professional standing. There is a saying that I do not like but which argues that those in suits are treated more fairly than those in tracksuits. It is nonetheless apt. Sentencing guidelines and education for the Judiciary on the obvious workings of fraud and white collar crime must be put in place. We are all living with the results of such crime. Sentencing guidelines that draw attention to the socioeconomic impact of white collar crime and corruption would assist in ensuring consistency and fairness in sentencing. They would also help underscore the intended deterrent effect of sanctions contained in existing legislation.

There must be consequences for those involved in such acts so they do not happen again and we can break the cycle of acceptability of corporate crime and fraud. This would involve a multidimensional approach to punishing corrupt or fraudulent behaviour, which includes custodial sentences proportionate to the impact of the crime, together with a system of financial compensation for the victims of corruption-related offences, which would be consistent with Article 9 of the Council of Europe Civil Law Convention on Corruption.

Such a system could be effectively informed by the use of socioeconomic victim impact statements and even community impact statements. One can consider the recent revelations from Anglo Irish Bank and the damage these caused; not one person in the State would be unwilling to write a victim impact statement on these consequences. The programme for Government not only commits to legislation dealing with white collar crime but also the introduction of legislation dealing with whistleblowers. We must create a position where people are given all the protection necessary to facilitate them to report corporate misconduct. This will not only increase the amount of white collar crime prosecutions and introduce a greater level of accountability within companies but could help create an ethos where corruption is no longer tolerated. We need that as soon as possible, and we need all the tools necessary to bring about a culture change in corporate Ireland.

Legislation in this area has been overly complex and allows certain categories of persons to report very specific offences. Some will argue that introducing this Bill, which attempts to deal with white collar crime before introducing legislation regarding whistleblowers, could be seen as putting the cart before the horse. The promised legislation on whistleblowers must be published at the earliest possible opportunity and I ask that the Minister take that on board.

In the absence of such legislation I commend Transparency International for launching a new helpline, which will go live on Thursday, 26 May, entitled Speak Up. That is a free information helpline offering support for people with ethical dilemmas or who have concerns about possible wrongdoing within the workplace. It is one of the first of its kind in western Europe and is partially funded by the European Union.

There is already a wide range of legislation and regulatory measures in place to deal with white collar crime but it is very often sectoral and specific and does not cover the whole sphere of white collar crime. The current use of enforcement measures has been highlighted by some commentators as a greater impediment to the prosecution of white collar crime rather than a lack of suitable legislation. At the recent Irish Criminal Bar Association conference on white collar crime, Dominic McGinn SC stated:

It is clear from the breadth and scope of the regulatory scheme which has been in place since 2004 and from the myriad criminal provisions which have a potential bearing on this sector that the banking crisis of 2008 was not caused through want of a regulatory scheme or criminal sanctions. Rather, it appears that the enforcement measures, which were available to properly regulate the banking industry, were not employed to their full potential, if at all.

Further investment in the enforcement of laws and regulations preventing economic crime is imperative. Any fines or settlements arising from prosecutions of white collar criminals and corporations should therefore be allocated to a ring-fenced central fund which could be used for future investigations and prevention measures. Likewise, any embargoes on recruitment to positions providing essential investigation services in law enforcement agencies should be removed. There have been the statements from the AGSI that there are insufficient officers in the Garda bureau of fraud investigations to tackle white collar crime and that must be addressed.

The area of corporate manslaughter is one which also needs attention. If an individual within a company, namely a company director, engages in white collar crime and this leads to the death of an employee, that person must be held accountable for his or her actions. This can arise when the company director breaches safety or environmental regulations in order to make personal financial gain.

The Bill includes a number of principal themes, the first of which is the suspension of detention. Since 1984, detention has become the norm and detention periods have been extended considerably. A detention period, or clock as it is more commonly known, runs from the time a person is brought to a Garda station until the detention time permitted under the particular legislation covering the arrest has elapsed. The clock may stop or be suspended during detention in limited circumstances, for example, current law allows for the suspension of questioning between midnight and 8 a.m. where the Garda in charge of the station is of the opinion that questioning should be postponed in order to allow the suspect to rest. Currently the suspect must consent in writing to the suspension but this Bill will introduce the suspension of questioning between midnight and 8 a.m. generally and the suspension will not depend on the opinion of the member in charge. However, questioning will not be suspended where the detained person objects to the suspension or the member in charge of the station authorises continued questioning on the grounds that to delay would involve a risk of injury to other persons, serious damage to property or interference with accomplices. The Minister outlined one such scenario in respect of kidnapping cases. Currently, the clock may also be stopped if a person is taken from a Garda station to a hospital or other suitable place for medical attention. The Bill does not change these provisions.

The Bill does however propose two major changes in respect of the suspension of the detention clock. Section 7 of the Bill proposes to allow detention periods for relevant offences to be broken into segments where there are reasonable grounds for doing so. A person could, for example, be detained for two hours initially and the remainder of the detention resumed at a later date following further investigation. We are told that the rationale behind this change is that white collar crime is often complex and involves large amounts of data. The Bill proposes that detention periods may only be suspended on two occasions and the entirety of the detention must take place within a four month period. While I agree that the investigation of white collar crime is a complex process a number of questions remain to be answered. What happens during the period of suspension? Does the suspect have to surrender his or her passport and will he or she be allowed to carry on working? What recourse is available if his or her employers suspend him or her pending the outcome of the investigation? It is possible that an individual could be detained, released and detained for questioning again over a period of as long as four months. We must take care that the Bill does not infringe the most basic principle of our judicial system, that is, the presumption of innocence until proven guilty. If somebody is brought in for questioning and the detention period is suspended, the case will be hanging over that individual's head and people will always presume there is no smoke without fire. This aspect of the Bill warrants further discussion and explanation as it progresses through the House.

Section 9 of the Bill allows for the detention clock to be stopped while a suspect waits to consult with his or her solicitor in person or over the telephone. This will prolong the period of detention for many suspects depending on how long it takes for a solicitor to arrive or become available to consult by telephone. The Bill provides that the period will not exceed three hours or any such shorter period as the Minister may prescribe by regulation. The clock may be stopped for six hours where a person detained pursuant to section 4 of the 1984 Act objects to the suspension of questioning between midnight and 8 a.m. In effect this will allow for the establishment of two separate clocks, a detention clock and an investigation clock.

The Bill suggests that a failure on the part of a member of the Garda Síochána to observe a provision of the regulations on a suspect accessing a lawyer shall not affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him or her. However, any breach of these regulations may render a Garda liable to disciplinary action. I ask for clarification on this issue because it raises the question of how evidence obtained during a period when a member of the Garda breaches regulations can be considered lawful.

One of the more frustrating issues facing those who prosecute white collar crime has been the slow pace of the investigations. Failure to compel suspects to co-operate with an investigation, produce documentation in a speedy manner or provide information relating to passwords for personal computers can stop an investigation in its tracks. Section 15 addresses this frustration by giving the Garda the power to apply to the District Court for orders to compel witnesses to answer questions or provide statements and to produce documents. The documents must refer to relevant offences and any information provided must have been obtained in the ordinary course of business. The questions to be answered must be set out in the application to the District Court. Before making an order under section 15, the court must be satisfied there are reasonable grounds for suspecting that a person has control or possession of particular documents, that the documents are relevant to the investigation, that the documents may constitute evidence of or relating to the commission of that offence and that the documents should be produced or access granted because of the benefit likely to accrue to the investigation and other relevant circumstances. Some advocacy groups have expressed concern about forcing witnesses to answer questions but, while I share those concerns, radical steps are necessary if we are to deal with white collar crime once and for all.

Section 15 also contains an important power in regard to the presentation of evidence. When a court makes an order to produce documents under section 15 it can also specify how the documents should be identified and categorised. That will help because the section also requires the production of a certificate or statement of evidence identifying and indexing the relevant documentation allowing its admissibility, thereby avoiding hearsay evidence rules.

The Bill also deals with the issue of privilege. Section 16(3) allows a person who refuses to produce or give access to the document ordered under section 15 to apply to the District Court for a determination as to whether the document in question is privileged. The Garda may also apply to the District Court for a determination as to privilege where a person refuses to produce or allow access to a document. Where there is a substantial number of documents to be examined a judge of the District Court has the option to appoint an experienced and independent person with suitable legal qualifications to examine the documents and make conclusions.

Section 19 proposes to create a new offence of withholding information in respect of relevant offences, to be punishable by up to a maximum of five years imprisonment and-or an unlimited fine. Section 19 states that a person will be guilty of an offence if he or she has information which he or she knows to be or believes may be of material assistance in preventing the commission by any other person of a relevant offence or securing the apprehension, prosecution or conviction of any other person for said offence. This places a much heavier onus than heretofore on witnesses to report potential or actual crimes. This again points to the importance of the introduction of the promised whistleblowers legislation, and I urge the Minister to bring it forward. There is no date for its publication but it should go hand in hand with the legislation we are discussing.

I commend the Minister on acting in such a speedy manner in bringing forward this Bill. White collar crime affects everybody and I look forward to debating the detail of the Bill as it progresses through the House and to examining the regulations the Minister has promised. I reiterate that he will have every co-operation from this side of the House in regard to any legislation which will, once and for all, nail the issue of white collar crime.

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