Sandra McLellan (Cork East, Sinn Fein)

I wish to share time with Deputy Colreavy.

Edwin Sutherland first popularised the term "white collar crime" in 1939, defining such a crime as one "committed by a person of respectability and high social status in the course of his occupation". He also included crimes committed by corporations and other legal entities within his definition. As a leading criminologist and sociologist, his study of white collar crime was prompted by the view that criminology had incorrectly focused on social and economic determinants of crime, such as family background and level of wealth. According to Sutherland's view, crime is committed at all levels of society and by persons of widely divergent socio-economic backgrounds. In particular, he contested that crime is often committed by persons operating through large and powerful organisations. White collar crime, he concluded, has a greatly underestimated impact upon our society. Sutherland's definition is, however, now somewhat outdated.

As an alternative to the socio-economic definition, many define "white collar crime" instead by the manner in which the crime is committed. The United States Department of Justice now describes it as non-violent crime for financial gain committed by means of deception by persons whose occupational status is entrepreneurial, professional or semi-professional and utilising their special occupational skills and opportunities and also non-violent crime for financial gain utilising deception and committed by anyone having special technical and professional knowledge of business and government, irrespective of the person's occupation.

The lifeblood of white collar crime lies in the fact that, unfortunately, people tend to draw the line where criminality begins and put their toes right up to that line. In our recent and not so recent past, banking executives, business leaders and politicians were dangerously close to committing criminal behaviour as defined by our laws and it seemed that they just wanted to stand on the other side of the line.

Even the perception, never mind the reality, of corruption, fraud, tax evasion, bribery, brown envelopes and-or political favours is detrimental to institutions, organisations and individuals. Prosecutors have powerful reasons to target white collar criminals. In addition to the loss of public confidence, white collar crime also causes huge financial losses to the state and local government, private organisations and individuals.

Internationally, the severity of the white collar crime problem has been acknowledged as one of the most serious problems confronting law enforcement authorities. In the United States, one sees people who are white collar criminals led out in handcuffs. Bernie Madoff ran a ponzi scheme and within 12 months was sentenced to 150 years imprisonment. On 10 December 2008, Madoff's sons told authorities that their father had confessed to them that the asset management unit of his firm was a massive ponzi scheme and quoted him as describing it as "one big lie". The next day, FBI agents arrested Madoff and charged him with one count of securities fraud.

The US Securities and Exchange Commission had previously conducted investigations into Madoff's business practices but did not uncover the massive fraud. On 29 June 2009, Madoff was sentenced before a court of law to the maximum sentence of 150 years in federal prison. In just over six months, charges had been brought, the case had been built and the trial was complete. Naturally, the particulars of that case do not apply across the board but the point remains valid. People want to see the same apply in this State.

While at all times protecting the most fundamental tenet of our system, the presumption of innocence, with the right focus, application and determination, the same regime can apply here. Prompt action against perpetrators of white collar crime is of the utmost importance if public confidence is to be restored and maintained. It has tarnished the name of this House and sullied the position of public representatives right across this State. For many years - for as long as I remember - rumours and allegations and an obvious absence of political will to challenge corrupt behaviour have plagued big business and politics in Ireland. I hope that after recent revelations arising out of various tribunal reports, a watershed has been reached in the State's attitude to these crimes.

There has long been in Ireland a perception that there is one set of rules for the ordinary working people and another set for the banking, business and political class. It is difficult to disagree when Government after Government follows an economic strategy which seems to reinforce that position. Ordinary working families can be left to struggle to pay household bills and mortgages and be faced with the possibility of losing their home while the architects of the single greatest financial crisis in the history of this State walk away scot free. Not only do they walk away scot free but to add insult to injury, in many cases, they walk away with golden handshakes, handsome pensions and all the trappings of grandeur. This cannot continue.

This Bill can play some role in ensuring that those who have broken the law can be prosecuted. However, I stress that on its own, the enactment of this Bill will not be enough. It must form part of a complete and holistic approach to the complex issue of white collar crime. We will need to provide answers to some of the following questions. Will gardaí who will have strengthened investigative powers, as granted by this Bill, have the manpower and expertise to bring cases and convictions? The Association of Garda Sergeants and Inspectors publicly expressed concerns in this regard at its recent conference. Will people suspected of white collar crimes continue to flout the law, at least the spirit of the law, by transferring assets to spouses, family and others in an attempt to protect their wealth? It is an insult to the people of this State to see bankers on Monday own a mansion, a Mercedes and have millions in cash and other assets tucked away but on Tuesday say, "No it's my wife's house, my son's car and I'm living on a subsistence allowance of €150 per week". The hand of the Garda must be appropriately strengthened in this regard.

Similarly, as a matter of some urgency, we must see before this House, the much awaited whistleblower legislation. So often in the past the focus shifts to those who made the allegations and not to the substance of the allegations themselves. As a consequence, incidents of white collar crime went unchallenged and repeated themselves in different ways for decades. Complicit in this was an historical reluctance of potential whistleblowers to come forward.

This was complemented by traditional fear, a corrosive culture of secrecy which has dominated every aspect of Irish life. The same moral equivocation responsible for political corruption was widespread and contributory in the banking crisis. This scenario must change if this Bill is to have the desired impact.

We need to create a culture where wrongdoing is not accepted, where those who speak out against it are protected and where the absolute deference shown to senior professionals is challenged. We have seen in high profile cases, for example, in the health service, where individuals who speak out can empower so many.

Now, more than ever, we must challenge the mindset that inhibits reflection and assessment of why wrongdoing has occurred in the first place. Public life has been paralysed by the refusal to acknowledge as much publicly. A society can only learn from its mistakes when it acknowledges that mistakes have been made. If we are serious about addressing systemic failures, a priority must be the introduction of comprehensive legislative protection for whistleblowers. Given the complexity of white collar crimes, a corruption immunity or leniency programme for certain witnesses, who are also accomplices to offences, will be a necessary part of this.

In regard to section 19, which deals with withholding information, and in addition to the lack of protection for whistleblowers, there is also a number of defences which may be raised to a charge of withholding information which will limit its effect. In the first instance, this duty applies to witnesses only and not to suspects, because of the right to self-incrimination. It is also likely that certain relationships, such as that of client and solicitor, will be exempt from this duty because of legal professional privilege and where other confidential professional relationships exist. This aspect of the Bill is a cause for concern and warrants further discussion as it progresses through the House.

I commend the Minister on his work in bringing the Bill before the House in a timely manner.

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