Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I can confirm to the Deputy that I received a report under section 955(1)(a) of the Companies Act 2014 from the Director of Corporate Enforcement on 23 June. This report addresses the issues highlighted by Judge Aylmer in his ruling in the case of DPP v .Seán FitzPatrick. The report sets out the facts relating to the case and does not purport to be an investigation or an inquiry. It covers the main issues directed at the ODCE by Judge John Aylmer in his ruling on 23 May 2017. This includes the coaching of witness statements; late disclosure of documents; a perceived bias by ODCE investigators; and the shredding of documents.

I have sought the advice of the Attorney General, specifically as to whether there are any legal impediments to publishing the report and discussing its contents in the Oireachtas. While it is crucial to identify and learn from any shortcomings in the investigative process in one particular trial, it is also important to recognise the very valuable role the ODCE has played, and continues to play, in facilitating compliance and enforcement of company law. Between 2012 and 2016, investigations by the ODCE have resulted in the restriction of 886 company directors. This means that they are prevented from being appointed or acting in any way as a director or secretary or being involved in the formation or promotion of any company unless it is adequately capitalised which, in the case of a public limited company other than an investment company, means a capital requirement of €500,000 in allotted paid up share capital, and in the case of any other company, the capital requirement is €100,000. ODCE investigations in the same period also resulted in the disqualification of 65 directors by the High Court. There have also been 971 instances of securing compliance with the Companies Act through the exercise of the director’s civil powers.

With regard to the Deputy's question, I would like to publish the report. It would be my intention to publish it, subject to ongoing clarification of the legal advice. There are quite a number of parties involved in this, as the Deputy is aware, and a range of legal work needs to be done before I can get to that point. The publication of the report will always be subject to the final advice of the Attorney General.

Additional information not given on the floor of the House

Since the establishment of the ODCE, there has been a sharp increase in the restriction and disqualification of directors. In 2004, only ten directors had been disqualified whereas by the end of 2016 that figure stood at 3,955.

The ODCE has also been successful in recent prosecutions. In 2014, two people were convicted for the giving of unlawful financial assistance by Anglo for the purchase of its own shares. In 2016, a person was convicted for fraudulent trading on foot of a plea of guilty. In 2016, a person was convicted for failing to maintain a licensed bank’s register of loans to directors on foot of a plea of guilty. In late April of this year, a person was arrested and charged with fraudulent trading based on an invoice discounting fraud and entered a plea of guilty. It is important that any actions we take are done with full knowledge and in line with fair procedures, due process and natural justice. It is my intention to publish the report subject to the advice of the Attorney General.

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