Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I know. I welcome this legislation and, as Deputy Jack Chambers mentioned earlier, Fianna Fáil will support it. However, it would be remiss of me not to mention the delay on the part of the Government in bringing the legislation before the House. I looked at when the heads of the Bill were first published, and it was five and a half years ago, in June 2012. It is disappointing that we have to wait for five and a half years for this legislation to come before this House by way of a Second Stage debate. It is also surprising that it has taken so long because when one looks at this legislation, there is not much to it. It simply updates and revises legislation that existed from 1889, 1906 and 1916. Those were the Acts that dealt with corruption prior to this legislation being introduced and until it is enacted.

Corruption is a subset of white-collar crime. Not every white-collar crime falls under the definition of corruption but corruption is a particular aspect of white-collar crime. Points have been made that the State has been ambivalent about white-collar crime. That is true about the past. However, my view is that has changed in recent years. It was not just a phenomenon in Ireland that there was ambivalence on the part of the State to white-collar crime. It was quite common internationally. It is sometimes said that nothing has been done as a result of the great banking collapse that we had and that bankers never went to jail. That is sometimes a riposte that one hears from individuals who say we are not serious about white-collar crime. However, as we know, that is not correct. When one looks at the prosecutions and convictions of bankers involved in issues concerning the banking collapse some ten years ago, one will see that, to date, eight bankers have been convicted by Irish courts and that six sentences of imprisonment have been imposed on bankers who have been convicted before the courts of serious offences such as conspiracy to defraud.

We can learn from recent experience that, as a State, we take white-collar crime seriously. That also applies to corruption. Just as there have been prosecutions which have been successful, there have also been recent prosecutions which have failed. We need to look at why they have failed. That is why there are deficiencies in the legislation we are discussing this evening. The objective of this House when drafting this legislation should be to try to bring in and enact legislation that would make it easier for the State to prosecute corruption offences while at the same time maintaining the rights an accused individual has when before the court. However, the legislation introduced is deficient in many respects. If one looks at the number of trials that have gone on for white-collar crime, one will note that a big difficulty experienced by prosecutors when it comes to prosecuting white-collar crime is to establish, by way of proof, issues that we would think are relatively straightforward. For example, a document might be written by one person and sent to another and might contain information. An ordinary person might think that it is obvious that the document was sent from the first person to the second and so the first person obviously meant that to happen. That does not happen in a court of law because one has to prove it and prove the content of it. The Minister and Government need to look at the Taxes Consolidation Act because we are far more advanced when it comes to the prosecution of Revenue offences than we are at present with the prosecution of other white-collar crimes such as corruption. In particular, the Minister and Government should look at section 1078B of the Taxes Consolidation Act which deals with those presumptions. Many people listening to this debate may think that is obvious but it is not that simple to prove issues such as this when they come before a court. One issue, to give an example of presumptions that operate with regard to Revenue prosecutions, is section 1078B(3), which states:

Where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to some other person, was made by that person.

If we could include that by way of a presumption in this legislation, it would make the life of a prosecutor much easier when it comes to prosecuting corruption offences. It has to be noted that prosecution of white-collar crimes is particularly difficult and complicated. That may be part of the reason we have fewer prosecutions for white-collar crime than we have for what may be regarded as more orthodox crimes. For instance, if somebody walks into a bar, grievously assaults a person and walks out of the bar, one would then set up a prosecution of the assailant. There are individuals in the bar who saw it and the victim who presumably saw the perpetrator. That evidence can be given in a prosecution. However, when one has a corruption offence, and documents transferring money, it is more difficult to prove it. An advantage of introducing these presumptions is that if there is something by way of a document saying that one person says to another that he will do something and it is done, then it is a presumption that it happened. At present, a prosecutor has to go through the process of proving that the first person wrote the document. That can sometimes be difficult when the first person is the accused in the case. He has a constitutional entitlement not to give evidence and it can be very difficult to prove it. We need to look at more innovative methods of trying to ensure that we make the life of a prosecutor in these cases considerably easier.

We need to learn lessons from some of the very lengthy prosecutions relating to white-collar crime that took place recently which failed. In the most prominent prosecution which recently failed, if anything, there was not a failure on the part of the prosecutor to take white-collar crime seriously. If there was any fault, the prosecutor was overzealous and overenthusiastic in trying to ensure that there was a conviction. Sometimes, individuals outside this House and even in this House may think that it is the job of a prosecutor to get a conviction. In the United States of America, there are prosecutors who might go in and say they are going to try to get Deputy McGrath convicted, or whoever it is, and look for the top sentences.

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