Michael Ahern (Cork East, Fianna Fail)

Subsection (3) of section 20 of the Companies Act 1990 provides that any material information seized by officers of the Director of Corporate Enforcement, under subsection (2) of the section, may be retained for a period of six months or such longer period as may be permitted by a judge of the District Court or if within that period any proceedings have commenced to which the information is relevant until the conclusion of those proceedings. The Office of the Director of Corporate Enforcement has had considerable difficulties with the operation of section 20(3) of the Companies Act 1990, as inserted by section 30 of the Companies Act 2001.

The position under all criminal justice legislation, other than for the ODCE and the Competition Authority, is that material seized on foot of a search warrant is retained until the conclusion of the relevant proceedings. There is no valid reason for the exception that currently pertains to the ODCE and the Competition Authority.

The ODCE is currently applying to the District Court on a weekly basis to renew warrants, with all of the associated arrangements, such as preparing court documents, alerting the other parties, briefing counsel, attending court and so on. It is a disruption to genuine investigative work, halts the progress of the investigation and is completely unwarranted. It also gives rise to an increased threat of successful legal action by companies and others under investigation. Not only does the ODCE have to defend the validity of the original warrant, it has to secure each retention application, as well as defending the validity of the resultant retention decisions in the subsequent criminal proceedings. The ODCE is also exposed to the risk of missing a renewal application date through an administrative oversight. The burden of criminal proof is already very high and section 20(3), as it stands, is adding to the difficulties of the ODCE. This amendment provides for the repeal of section 20(3).

Subsection (2) of the proposed new section is required to preserve the entitlement of persons whose documents were seized under a regime involving the ongoing judicial control of the duration for which the documents could be seized. For example, where the ODCE holds documents on foot of a warrant which requires that, in order to retain them, it is obliged reappear before a judge within six months, the outright removal of this obligation is considered inappropriate.