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

There is, however, a considerable skill involved in prosecuting offences, especially white-collar crime. Part of the problem in a recent case that collapsed was that there was not the involvement of specialised prosecutors at a very early stage. The job of an experienced prosecutor is to look at the general facts of a case to find a line of prosecution that is likely to succeed. Part of the problem in prosecutions for corruption and white-collar crime is the complexity of the issues involved. People may say that is just a creation and that it is not that complex. It is. It involves taking a jury through complicated information and keeping it there for very lengthy periods. I am aware that this does not just happen in white-collar crime cases but it is the function of prosecutors to try to ensure they present a case to a jury in a much simpler way. That is the reason it is appropriate for prosecuting authorities such as the Director of Public Prosecutions or investigative authorities such as the Office of the Director of Corporate Enforcement to avail of the services of people who are experienced in standing up in a court room, addressing a jury and trying to secure or run a prosecution.

There are other matters with the Bill to which I wish to refer. To a large extent, sections 5 and 6 replicate the language used in the Prevention of Corruption Acts 1906 and 1916. Just because they replicate that language does not mean there is anything wrong with it, but I ask the Minister to look again at the reliance placed in the sections on the use of the adverb "corrupting" which is defined in the definitions section in rather a loose way. It states:

“corruptly” includes acting with an improper purpose personally or by influencing another person, whether-(a) by means of making a false or misleading statement,

(b) by means of withholding, concealing, altering or destroying a document or other information, or

(c) by other means;

I believe the reference to "acting with an improper purpose" is too vague and that the Minister needs to look at it again.

I note that for some reason under section 7 which deals with corruption the definition of an Irish official does not include a member of a local authority. Considering the evidence and information we have on corruption that has taken place, it would not be advisable to exclude members of a local authority from the definition.

There are a number of sections in the Bill that deal with presumptions. Sections 14 to 16, inclusive, set out three presumptions. We need to have many more in the legislation if we want to make prosecutions more likely and successful.

Section 15(1)(b)(i) refers to a donation to a politician being presumed to be corrupt if it is not within the limit provided for or permitted under legislation. The section refers to a "donation exceeding the limit concerned to the donor in accordance with whichever section of the Act of 1997 or the Act of 1999" applies. I do not believe we can have in legislation words such as "in accordance with whichever section". These are words with which politicians like me can get away in Second Stage debates. We need much greater specificity in identifying specific sections of Acts.

I note that the penalties are a little light. Section 17 sets out the penalty for an offence under section 6 as a term of imprisonment not exceeding five years. A breach of section 18(1) can result in a term of imprisonment that is greater. It brings it up to ten years.

An interesting point was raised by Deputy Ó Laoghaire that needs to be looked at again. There is a provision in the legislation that allows the court to direct or make an order for the forfeiture of any office. The Deputy wondered why, when it came to prohibiting a person from seeking to hold or occupy an office, Members of Dáil Éireann and Seanad Éireann and other elected officials were excluded. It is my understanding of the legislation, from the way it is drafted, that if an elected Member of these Houses or a member of a local authority is convicted of an offence under it, the court may make an order telling him or her to give up his or her seat. If I was to be convicted of an offence under the Bill, I could be subjected to an order that I forfeit my seat and I would lose it. That is a considerable power and it is not the position in the case of a lot of other legislation. We know that under section 41 of the Electoral (Amendment) Act 1992 if a Deputy is convicted of an offence which carries a sentence of imprisonment of more than six months, he or she will lose his or her seat. There is an interesting issue if it was ever examined.

The point raised by Deputy Donnchadh Ó Laoghaire was related to section 17(4)(c). This provision is different. It states that if a person is convicted of an offence under this legislation, there are certain jobs from which he or she will be precluded from seeking. One of them is working for the State in the Civil Service. It does, however, exclude membership of Dáil Éireann and Seanad Éireann. Perhaps the Minister might clarify the position. I presume and suspect the reason is Article 16 of the Constitution which states every citizen over the age of 21 years shall be eligible for membership of Dáil Éireann. I would also be wary and hesitant about imposing such a sanction. I am aware that the Minister is not doing it, but if a person was to be convicted of an offence under corruption legislation, he or she would subsequently be prevented from standing for election to Dáil Éireann. That is a big step and it certainly needs careful consideration, not for the protection of politicians but because the public is entitled to elect an individual to Dáil Éireann. People who have been convicted of offences have been elected to parliaments.

On the sections that contain amendments to other items of legislation, there is a proposal to amend section 42 of the Electoral Act, to which I have already referred, which provides that a person who is convicted under this legislation will thereupon cease to be a Member of Dáil Éireann.

I welcome the legislation and it is important that greater consideration be given to it. We have spent five and a half years getting to this point from the date of publication of the heads of the Bill. If we want to make sure prosecutions for corruption will take place more efficiently and more successfully, we must insert these mechanisms into the legislation. The way to do this is by availing of the presumptions in the Revenue Acts. We could also come forward with further presumptions. We must, however, be conscious all the time that in every criminal trial there is an accused. We can keep bringing forward legislation to make prosecution easiers, and in this instance we should, but we should recall that in a criminal case the accused has an entitlement to a fair trial. We need to ensure he or she will have his or her full rights vindicated prior to the outcome of the case.

They are my views and I thank theLeas-Cheann Comhairle for giving me the time to express them.

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