Alan Shatter (Dublin South, Fine Gael)

It was our final meeting before the summer recess. I hope it will not be our final meeting altogether.

I am pleased to present the Criminal Justice Bill 2011 to the House. I am grateful that the Seanad is sitting this week in order to facilitate the taking of this particularly important measure. It is urgent that the Bill be enacted.

The programme for Government is unambiguous in its commitment to the principle that the white collar criminal must be made amenable for his or her crime. As Minster for Justice and Equality, my top priority is to restore the faith of the Irish people that this principle will be as vigorously applied to white collar crime as it is to all other crime. Justice delayed is, of course, justice denied.

The Bill is an important step in delivering on the Government's strong commitment to tackle white collar crime. A fundamental principle of criminal justice is that the person who commits a crime should be brought before the courts and made accountable. The faith of the Irish people in that principle, as applied to financial wrongdoing, has been severely tested in recent times. There is widespread concern that the investigation and prosecution of white collar crime in this country is taking too long. There is no doubt that the complexities of financial crime create a major challenge for investigators and prosecutors. However, we must find ways to ensure that no matter how complex the crime and no matter how important, wealthy or influential the wrongdoer may be, he or she must be brought before the courts. I have one simple and straightforward message - there will be no impunity for those who engage in white collar crime.

With the co-operation of the House, I hope the Bill will complete its passage through the Oireachtas before the summer recess and that it will be brought into operation shortly after enactment. The main purpose of the Bill is to address delays in the prosecution and investigation of complex crime by improving certain important procedural matters and strengthening Garda investigative powers. The proposals in the Bill are based on the experiences of those involved in investigations and prosecutions of white collar crime and, in particular, on the experiences of those involved in current investigations into bank fraud and financial irregularities. My intention is to ensure that the new procedures and powers set out in the Bill will speed up future investigations and prosecutions. However, it is also my intention that the provisions of the Bill will be available to investigators in order to speed up major investigations currently under way. The Bill is being targeted at specified serious and complex offences attracting a penalty of at least five years imprisonment, including offences in the areas of banking and finance, company law, money laundering, fraud, corruption, competition, consumer protection and cybercrime.

Before I discuss the details of the Bill's provisions, I will briefly outline the main proposals it contains. First, the Bill provides for a new system to make more effective use of detention periods. This will allow persons arrested and detained for questioning by the Garda to be released and their detention suspended so that further investigations can be conducted during the suspension period. A central provision of the Bill is the new power for the Garda Síochána to apply to court for an order to require any person with relevant information to produce documents, answer questions and provide information for the purposes of the investigation of relevant offences. Failure to comply with such an order will be an offence.

The Bill also contains measures relating to how documents are to be produced to the Garda. These measures are aimed at reducing the delays associated with the production of large volumes of poorly ordered and uncategorised documents to the Garda in the course of its investigations. The Bill contains other measures to prevent unnecessary delays in investigations arising from claims of legal privilege. In addition, it provides for presumptions in respect of documents. This will streamline the admission of evidence. Furthermore, the Bill provides for the creation of a number of new offences, including an offence similar to the former misprision of felony offence. The latter relates to a failure to report information to the Garda. The Bill contains provisions to protect employees from penalisation for disclosing information to the Garda relating to relevant offences.

I am also taking the opportunity presented by this Bill to clarify two issues relating to the investigation of crime more generally. These issues relate to the right of suspects in Garda custody to access legal advice prior to questioning and the circumstances in which questioning may be conducted between the hours of midnight and 8 a.m.

Will now deal with the detail of the Bill's main provisions. The Bill is being targeted at certain complex white collar crime. Section 3 provides for the scope of the Bill. Its provisions, other than those relating to the investigation of crime generally, will apply to offences referred to as "relevant offences". A relevant offence means an arrestable offence specified in Schedule 1 or as the Minister may specify by order. An arrestable offence is an offence punishable by imprisonment for five years or more. The offences in Schedule 1 include theft, fraud and corruption offences as well as company law, banking and other financial offences. The offences which may be specified by order of the Minister are those relating to banking, investment of funds and other financial activities, company law, money laundering and financing terrorism, theft and fraud, bribery and corruption, competition and consumer protection, crimes in respect of electronic communications networks and information systems and the raising and collection of taxes and duties.

The Minister must consider that the powers under the Bill are, by reason of the nature of the arrestable offence concerned - and the prolonged period that may be required for the investigation of such offences as a result of the complexity of the matters to be investigated - necessary for the investigation of that offence. The Minister must consult with any other relevant Minister before making such an order.

The proposals in Part 2 of the Bill include a new system to make more effective use of detention periods. The complexity of recent investigations and the volumes of documents involved have shown that it is not always possible to complete questioning and check facts in one period of detention. The suspension of detention provisions, provided for in section 7, is being applied to the 24-hour maximum detention period permitted under section 4 of the Criminal Justice Act 1984. The amendments will allow the period of detention under section 4 of the 1984 Act to be suspended and the person to be released during the period of suspension. The purpose of these provisions is to allow the Garda to follow up on information obtained during questioning and to conduct further investigations during the suspension period.

Paragraph (a) inserts six new subsections into section 4 of the 1984 Act. Subsection (3A) allows the Garda to suspend the detention of a person being detained in respect of a relevant offence where there are reasonable grounds for considering it necessary to do so for the purpose of permitting inquiries or investigations to be made for the further and proper investigation of that offence. Subsection (3B) provides that a person's detention may be suspended on no more than two occasions. The total time for which a person's detention may be suspended must not exceed four months from the date of the first suspension. The person must return to the Garda station at the date and time specified in the notice given to him or her under subsection (3C) or at such other date and time or Garda station as may be notified under subsection (3D).

Subsection (3C) provides that the person concerned must be given notice in writing that his or her detention is being suspended, of the Garda station and of the date and time on which he or she must return for the continuation of the detention, and of the consequences of failing to return. The effect of the notice must be explained to the person orally by a garda. Subsection (3D) provides for the issuing by a Garda inspector of a notice changing the return date and time or Garda station to which the person must return.

Subsection (3E) provides for the continuation of a person's detention on his or her return to the Garda station. It also provides for the person's release where the member in charge of the Garda station concerned no longer has, at the time of the person's return, reasonable grounds for believing the person's continued detention is necessary. Subsection (3F) clarifies how suspension of detention will operate in cases where the person is detained for another offence or the detention is continued under subsection (5A) of section 4 of the 1984 Act in regard to another offence.

Section 8 follows up on the provisions of section 7 and deals mainly with the consequences for a person who fails to return to a Garda station after the period of suspension has expired. Section 8 inserts new sections 4A, 4B and 4C into the Criminal Justice Act 1984. Section 4A provides that a person who fails to return to a Garda station for the continuation of a period of detention which was suspended may be arrested without warrant and returned to that station. The period of time commencing on the person's arrest and ending on his or her arrival to the Garda station concerned will be excluded in reckoning a period of detention permitted under section 4 of the 1984 Act. Section 4B provides for an offence of failing to return to the Garda station concerned. Section 4C provides for a regulation-making power in regard to the procedures to apply to the suspension of detention.

I will now refer back to paragraph (c) of section 7. The provisions in section 7 which I outlined introduce a new procedure in regard to suspended detention and are limited to relevant offences. In contrast, the amendment in paragraph (c) of section 7 applies to all persons detained under section 4 of the 1984 Act, irrespective of the offence concerned. It amends subsection (6) of that section in order to clarify the circumstances in which such persons may be questioned between midnight and 8 a.m.

As a consequence, the norm will be that no questioning will take place between these hours other than where the detained person objects to the suspension of questioning, in which case questioning will continue, or the member in charge authorises questioning for exceptional reasons relating to the particular circumstances of the case. The circumstances required to justify such an authorisation are specified and include a reasonable belief on the part of the member that to delay questioning until the following morning would involve a risk of injury to other persons, serious damage to property or interference with evidence. A possible scenario is where a person is detained in connection with a kidnapping that is still in progress and where there is concern for the safety of the victim. As is already the case under the 1984 Act, any period that is suspended will be excluded from the calculation of the detention period. I am continuing this approach, as to do otherwise would greatly reduce the amount of time available to the Garda to question a person detained under section 4. The maximum period of detention permitted under section 4 is 24 hours.

Section 9 contains further amendments to the 1984 Act which are of general application to persons detained under section 4. The amendments concern the well-established right of a person in Garda custody to access legal advice and are aimed at clarifying the circumstances in which questioning may proceed, notwithstanding that the suspect has not yet had an opportunity to consult with a solicitor. It is generally Garda practice to delay questioning to facilitate such consultations. However, recent jurisprudence of the European Court of Human Rights emphasises the importance of detained persons having, as a rule, access to legal advice in advance of questioning. Exceptions are permitted but must be based on compelling reasons arising from the circumstances of the particular case. In order to ensure our laws are fully compliant with our obligations under the European Convention on Human Rights and have the degree of certainty required, it is necessary to clarify the matter in legislation.

Paragraph (a) inserts two new sections in the Act. Section 5A contains the general rule that questioning of detained persons is not to proceed pending access to legal advice. Two exceptions are permitted, namely, where the person waives his or her right to consult or where the member in charge authorises questioning. The test that must be met before such an authorisation may be given is identical to that which will apply to the questioning of persons between midnight and 8 a.m. Again, the member must have reasonable grounds for believing that to delay would involve a risk of one of a specified list of circumstances arising. The list includes injury to other persons, serious damage to property, interference with evidence and so on.

I am providing for the detention clock to stop subject to a maximum period pending a solicitor making himself or herself available for a consultation. This provision is necessary to deal with the difficulties encountered by the Garda in contacting available solicitors in, for example, rural districts or at weekends. I am satisfied that the maximum periods proposed - three hours for the most part but up to six hours in some circumstances between midnight and 8 a.m. - strike a reasonable balance between the rights of the detained person and the needs of the investigation of crime.

Section 5B provides for ministerial regulations in regard to procedural matters concerning access to solicitors. The proposed regulations will assist the Garda authorities in implementing arrangements to facilitate the right of detained persons to access legal advice. These amendments refer to persons detained under section 4 of the 1984 Act. It is important that they also apply to persons detained under other statutory powers such as section 30 of the Offences against the State Act 1939 and section 2 of the Criminal Justice (Drug Trafficking) Act 1996. This is achieved by paragraph (b) of this section and by sections 13 and 14 of the Bill.

The amendments in paragraphs (c), (d) and (e) of section 9 and in sections 10,11 and 12 concern the various provisions on the Statute Book which allow inferences adverse to an accused to be drawn in criminal proceedings from his or her failure or refusal, for example, to answer questions asked by gardaí during an investigation which clearly call for answer. The amendments make clear that in order for an inference to be drawn in proceedings, the accused must have had access to legal advice, other than where he or she has waived that right.

Returning to the issue of white-collar crime, experience with recent investigations has shown that inquiries can be hampered by the reluctance of some potential witnesses to make statements or otherwise provide information to the Garda Síochána. Part 3 of the Bill contains new powers to compel witnesses to provide documents and information to gardaí to assist in the investigation and prosecution of complex crimes.

Section 15 provides that a garda may apply to the District Court for an order for the making available by a person of particular documents or the provision of particular information, whether by answering specified questions or making a statement setting out the answers to those questions. The District Court judge must be satisfied there are reasonable grounds for believing that the document or information is relevant to the investigation of the relevant offence concerned, that there are reasonable grounds for suspecting that it may constitute evidence of or relating to the commission of that offence and that there are reasonable grounds for believing the document or information should be provided, having regard to the likely benefit to the investigation and any other relevant circumstances. Where the judge orders the production of documents, he or she may order the person to identify and categorise them in a particular manner. This provision should help to reduce the delays associated with the disclosure of large volumes of poorly ordered and uncategorised documents to the Garda Síochána in the course of investigations.

An order providing for access to documents in a specified place may require a garda to be allowed to enter the place to obtain access to the documents. Provision is made for access to passwords where the documents concerned are in non-legible form, for example, electronic documents on a computer. It should be noted that the order does not confer any right to production of, or access to, any document subject to legal professional privilege. However, the order has effect notwithstanding any other obligation to secrecy or other restriction on disclosure of information.

Provision is made for the retention by, or return to, a person of documents where the documents are required for the purposes of a person's business or other legitimate purpose. The person must undertake in writing to keep the documents safely and securely and when requested, to furnish them to the Garda Síochána in connection with any criminal proceedings for which they are required. Documents taken away by a garda under section 15 may be retained for use as evidence in any criminal proceedings.

These provisions are targeted at witnesses, not suspects. Accordingly, to preserve the right against self-incrimination, a statement or admission made by a person pursuant to an order under section 15 is not admissible as evidence in proceedings against the person for an offence, other than an offence under the section itself. A person who fails or refuses to comply with an order under section 15 is guilty of an offence. Provision is also made for an offence of providing false or misleading information or statements. A person who fails to comply with an undertaking given by him or her under this section is guilty of an offence. The offences will be punishable by unlimited fines and up to two years imprisonment or both.

Access to documents by the Garda Síochána can be severely delayed by claims of legal privilege which give rise to applications to the High Court. Section 16 contains provisions aimed at reducing such delays by making provision for determining legal professional privilege issues which arise regarding District Court orders under section 15 requiring the disclosure of documents to the Garda Síochána.

Under the new provisions, where a person refuses to disclose a document or give access to it pursuant to a court order under section 15 on the grounds that it is privileged legal material, the Garda Síochána or the person concerned may apply to a District Court judge for a determination as to whether the document is privileged legal material. Pending the determination of the application, the person concerned is obliged to preserve the document and keep it in a safe and secure place. The District Court judge may also give interim or interlocutory directions, including, in a case involving a substantial volume of documents, the appointment of an experienced, independent person with legal qualifications to examine the documents and prepare a report for the judge with a view to facilitating the court's determination as to the documents.

Rules of court may make provision for the expeditious hearing of applications and appeals under section 16. Section 17 provides for an offence relating to the falsification, concealment or destruction of documents relevant to a Garda investigation into a relevant offence. The offence is punishable by an unlimited fine and imprisonment for up to five years or both. Section 18 provides for certain evidential presumptions to arise where documents are admitted as evidence in proceedings for a relevant offence. It provides for presumptions on the creation, ownership, receipt and other matters relating to documents. These presumptions may be rebutted by the defendant. This provision is important to streamline the way in which requirements of evidence can be met concerning documents submitted in complex, white collar crime cases.

Section 19 provides for a new offence, similar to the former misprision of felony offence, which relates to the failure to report information to the Garda Síochána. The offence will apply to a person who has information that he or she knows or believes might be of material assistance in preventing the commission of a relevant offence or in securing the apprehension, prosecution or conviction of another person for such an offence. A person who fails without reasonable excuse to disclose such information as soon as practicable to the Garda Síochána will be guilty of an offence. The offence is punishable by an unlimited fine and imprisonment for up to five years or both. A similar offence is contained in section 9 of the Offences against the State (Amendment) Act 1998 but it is limited to certain serious offences.

Section 20 makes provision for the protection of employees who disclose information to the Garda Síochána about relevant offences as required by section 19, to ensure that such persons will not suffer penalisation in the workplace. The section prohibits an employer from penalising an employee for making a disclosure to the Garda Síochána about a relevant offence, for giving evidence about that disclosure in any proceedings for a relevant offence, or for giving notice of his or her intention to do so. The section contains a broad definition of penalisation, which includes any act or omission of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment. The definition also lists specified instances of such acts or omissions. Complaints about an alleged contravention of section 20 can be presented to a rights commissioner in accordance with the procedure set out in Schedule 2.

Section 21 provides for a number of offences relating to section 20. It will be an offence for an employee to make a disclosure to the Garda Síochána about a relevant offence knowing the disclosure to be false or being reckless as to whether it is false. It will be an offence for an employer to penalise an employee in contravention of section 20.

Section 22 is a standard provision regarding offences by bodies corporate. Schedule 1 sets out the offences that will be relevant offences for the purposes of the Bill. If it is subsequently decided that additional offences meet the criteria for designation as relevant offences, they can be specified as relevant offences by way of orders under section 3. Schedule 2 sets out the procedure for presenting complaints relating to alleged contraventions of section 20 to a rights commissioner and the Labour Court. I have signed an order to bring into effect a measure to assist juries in their deliberations in complex theft and fraud trials.

The discussions at the recent Irish Criminal Bar Association conference on white collar crime, at which I gave the opening address, made an important contribution to the ongoing debate on how we can find better ways to tackle white collar crime. The paper delivered by Shane Murphy SC at the conference brought to my attention the fact that section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001 had not been commenced.

Theft and fraud trials can involve the presentation of extensive evidence about company accounts, complex financial transactions and convoluted money trails. Section 57 of the 2001 Act allows for various documents such as charts, diagrams and summaries of evidence to be given to juries in such cases. This will allow jury members to review key aspects of evidence in a simplified manner and enhance their ability to reach just and fair decisions. Section 57 was not commenced previously due to concerns about potential technical and cost difficulties in producing documents such as evidence summaries and transcripts. The installation of digital audio recording systems in courtrooms has addressed some of those concerns. In light of these improvements, but also due to the fact that the cost of producing such documents is far outweighed in serious fraud cases by the need for justice to be done, I have made the necessary commencement order to bring section 57 into operation with effect from 1 August. This is another important step in tackling white collar crime. For too long, the complexity of evidence in fraud trials has been allowed to stand as a barrier to effective prosecutions. Along with this Bill the commencement of section 57 of the 2001 Act will strengthen the hands of the Garda Síochána and the Director of Public Prosecutions in their work to investigate and prosecute white collar crime.

I have brought forward the Criminal Justice Bill quickly to deal with issues that are currently causing problems and delaying or potentially delaying the investigation and prosecution of white collar crime. It is an important step in ensuring the white collar criminal will be vigorously pursued by the authorities of the State. We must put an end to any hint of a culture that suggests that the white collar criminal can act with impunity. In this Bill, I propose to give the Garda Síochána and the prosecutors the powers they have told me are necessary to help them investigate white collar crime and to bring prosecutions more efficiently. The Bill will make an important contribution both to current and future investigations. It is of the utmost importance that this State is seen to have the capacity to fully and properly investigate all alleged instances of white collar crime and that our prosecuting services are able to process to prosecution stage files they receive detailing circumstances which lead to a conclusion that a crime has been committed for which a prosecution should ensue.

In the context of the banking issues that have arisen there is a huge concern among the public that the investigations being undertaken are completed as early as possible and that, in so far as any criminality is revealed, prosecutions ensue. It is my belief that in so far as there have been delays as a consequence of the Garda finding that witnesses were non-co-operative or those under investigation were not providing the co-operation necessary to facilitate the investigation, in so far as the Garda may have been obstructed in any way in accessing crucial documentation or information electronically held, this Bill, when enacted, will be a vital cog in the armoury of the Garda Síochána to facilitate successful outcomes to such investigations. It will in the future be seen to be an important part of our criminal justice architecture.