Micheál Martin (Cork South Central, Fianna Fail)

This is an interesting amendment. With the exception of the Pyramid Selling Act 1980, the criminal enforcement provisions of consumer legislation are based on a model of strict liability offences, that is, offences in respect of which there is no requirement to show intention or negligence on the part of the accused person, balanced by a due diligence defence. Again, with the exception of pyramid promotion schemes, this is the approach taken by this Bill and section 75 provides for a due diligence defence along the lines now well established in regulatory legislation.

The Pyramid Selling Act 1980 provided only for transitional defence for persons charged with offences relating to schemes in operation before the commencement of the Act. Unlike that Act, which essentially prohibits only the promotion of such schemes, section 62 of this Bill makes it an offence to participate in a pyramid scheme. While it is difficult to conceive of circumstances in which a person could innocently establish, operate or promote a pyramid scheme, a person could, conceivably, be an unwitting participant in such a scheme. The amendment proposed to section 62(1)(b) introduces a mental element to the participation offence by specifying that a person must knowingly participate in such a scheme for an offence to be committed. The amendment to section 75 proposes the exemption of offences relating to pyramid schemes from the due diligence defence provided in this section. It was never my intention to apply such a defence to pyramid scheme offences. This amendment effectively restores the position under existing legislation. Since the penalties are very severe, amounting to five years' imprisonment in other sections of the Bill, the approach adopted in respect of participation in pyramid schemes, rather than their promotion or organisation, is sensible and balanced.