Dáil debates

Wednesday, 27 January 2021

Criminal Justice (Theft and Fraud Offences) (Amendment) Bill 2020: Second Stage

 

4:40 pm

Photo of Pa DalyPa Daly (Kerry, Sinn Fein) | Oireachtas source

On the amendment to which the Minister of State referred, I know that pet theft is very upsetting. It is even more upsetting than regular theft but I am not sure that this is the place to be putting an amendment to Bill of this nature. The delay to which it would give rise would cause more trouble that it is worth. It is important to say that in the original 2001 Act, under section 12, the penalty on indictment is imprisonment of up to 14 years for somebody who goes onto someone else's property and steals anything, regardless of whether it is a pet. These stories play out well in the media, and especially on social media. After the most recent meeting of the joint policing committee in Kerry, I asked one of the sergeants how many cases of pet theft there have been in the county. There have been fewer than five - and it is not the higher end of fewer than five - reported pet thefts in Kerry since 1 January 2020. The key consideration when it comes to a matter of this nature is that this House has a responsibility to address crime and the causes of crime, but also the fear of crime. The same garda to whom I spoke to informed me that were more complaints from people going about their business in the county doing legitimate tasks who were wrongly identified as individuals who were possibly stealing pets, and dogs in particular. Gardaí in Kerry were frustrated that this issue was being hyped up and people were afraid that there were some individuals going around the county, and the country in general, stealing dogs, when that is not the case. It is important to put that fact on the record.

On the substantive issue, I wish to highlight the delay in transposing this directive. We have been forced into a situation whereby we have been asked to pass this Bill quickly through both Houses. What commencement date does the Minister of State have in mind in respect of this amending legislation. I understand that existing laws, including the Criminal Justice (Corruption Offences) Act 2018, largely cover our obligations, but a referral to the European Court of Justice is a serious matter. Some account should be given as to why the delay occurred here, as it did with transposing other obligations relating to money laundering and the financing of terrorism. Deputies, Ministers and officials are only human. Rushed lawmaking could lead to mistakes and an absence of scrutiny.

One important matter in this regard relates to how the Bill amends the Criminal Justice (Corruption Offences) Act 2018, while retaining the defence for bodies corporate under section 5. The relevant section states "it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence." With regard to the original group of offences that the Act covers, some of which were intended to transpose the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions into Irish law, offences under this Bill will also be subject to that defence. The OECD has commented, in the context of its own recommendations, that this is not a defence that it envisaged under the convention. On foot of its report, I understand that the Department is of the view that an offence of vicarious corporate liability would violate an assumption of mens rea, with potential constitutional consequences. Nevertheless, the OECD has pointed out that there is no definition of what could constitute "reasonable steps" or "due diligence". Maybe this could be looked at further on Committee Stage.

One aspect of the Bill that is notable and, indeed, welcome in facilitating prosecutions is that it will allow for extraterritoriality in the prosecution of offences, including situations in which an offence takes place abroad and the proceeds of that offence are laundered in this State. Our laws, having long been criticised by the OECD, have become far more robust since the passing of the 2018 Act. This is particularly important because of the amount of foreign direct investment into this country. We must not let Ireland be perceived as a soft touch when it comes to corporate wrongdoing or exceptionalism.

We should not drag our feet in respect of this Bill. We will support its passage. We should have a strong enforcement system, but law is only one part of the system. I believe there is another Bill undergoing pre-legislative scrutiny to overhaul the Office of the Director of Corporate Enforcement, ODCE, which is also worthy. The powers for the ODCE or the offences created under this Bill are of no use without the resources. The State needs to give itself a fighting chance and create a career path for people who are interested in law and accountancy to work in these matters. The offences under discussion are complex, multilayered and require much know-how. Furthermore, in the area of white-collar crime, private practice will always enjoy an advantage over the prosecution in light of the rewards for those qualified individuals. Various investigations in the past have been delayed and stymied by a lack of resources in the ODCE. Some household names were involved in cases where serious wrongdoing occurred and public confidence in our wider legal and economic system rests on successful sanctioning where wrongs have occurred. That said, Sinn Féin will support the Bill proceeding to Committee Stage. I look forward to engaging with the Minister of State on it in the future.

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