Wednesday, 27 July 2011
Criminal Justice Bill 2011: Committee and Remaining Stages
Alan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
I again thank the Seanad for taking the Bill today and my colleague for raising the issue.
Section 19 is a very important section. It is worth recording what it states before I comment on it. Subsection (1) states:
A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—
(a) preventing the commission by any other person of a relevant offence, or
(b) securing the apprehension, prosecution or conviction of any other person for a relevant offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.
The relevant offences are the offences referred to and listed in the Schedule to the Bill. They are, essentially, offences that could globally be referred to as white collar crime offences.
Subsection (2) describes the position if someone is found guilty of an offence:
A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.
The importance of this provision is to ensure, essentially, that when someone is aware that others are engaged in white collar crime or are planning to effect a crime that would fall into that category there is an obligation to report it to the Garda in order to assist it in either preventing the commission of to crime or in the investigation of the crime. There are a number of obvious examples that could be given.
For example, one could take a very simple situation of a private limited company where an employee is concerned about the manner in which financial matters are being dealt with in that company. He or she may be concerned that there is an attempt to defraud individuals that the company is trading with. There may be a concern that there is an attempt to defraud the Revenue. There may be a concern, perhaps, that a managing director of the company is trying to defraud the company. It may be an internal issue relating to a company. It does not have to be a limited liability company. There may be a business that is a partnership. Let us take some of the areas that have been in the public arena. Let us deal with the profession of which I was a member for many years. There may be a concern about an assistant solicitor working in a solicitors' firm, that a partner or a member of that firm was misusing clients' funds or was giving false undertakings to banks, possibly with regard to their own financial arrangements. Take, for example, instances we are aware of, that have occurred and been reported as resulting in individuals being struck off as solicitors by the Law Society where, perhaps, a solicitor gave undertakings to a series of different financial institutions in order to obtain loans that he or she would provide a particular property as security for the loans and it turned out that the property might have been adequate security for one loan with one financial institution but would not be adequate security for a range of similar loans with a multiplicity of institutions, none of whom had to wit to find out if the property was already pledged as security to someone else. That could result in a report.
Let us take a global banking issue without any particular reference to any institution in the State. I want to be careful to say nothing as Minister that might prejudice any investigation or prosecutions that might take place. If there were individuals within a banking institution who were concerned that there was a degree of false accounting, a presentation of profitability or capital values which would mislead shareholders, the stock market or investors or who were aware of these events, they would be under an obligation, under section 19 of this Bill, if they had knowledge that could prevent the commission of crime to report it to the Garda Síochána, or if they were aware that crimes were committed to assist the Garda in its investigation.
What is very important with regard to section 19 is the linkage with the whisteblower provisions in the Bill which seek to ensure that where people in good faith make a report to the Garda on an issue about which they are concerned that cannot detrimentally impact on their employment or result in losing their job, or being discriminated against in any shape or form in their job, or being prevented or blocked from promotions. It contains a whole range of protections.
Where does this change the law? At the moment, there is not as clear a provision in our existing law that creates those obligations nor do we have the whistleblower protection in the manner which is prescribed in this legislation. If in the context of the appalling decisions made within the banking sector, by financial institutions, and if in the context of the events of recent years, a person in a junior or senior position, in any of the financial institutions that got into trouble, was of the belief that criminality was involved in the manner in which an institution or a senior person in that institution was conducting business, under this legislation that knowledge would have required them to report it to the Garda Síochána and it would have been a very specific identifiable offence to cover it up. In the context of investigations that are current, when this legislation is enacted, people who have information that can assist the Garda in an investigation, who may be guilty of no criminality themselves, but they have information and they have not come forward with it, it makes it crystal clear that they have a legal obligation to give that information. Should they fail to do so, they themselves, if it emerges that they knew of or had access to information that would be of assistance, could be liable to a criminal charge. We know that in the context of investigations that occur, be it the banking crisis which the State has had to deal with or other areas of the law, there are on occasions individuals who have information that could assist the Garda in the investigation of serious crime or they may have documentation, or access to electronically held information, who may choose simply to keep their head down and do nothing. Some may do it out of fear for their physical safety and some may do it out of fear that it could detrimentally impact on their future employment positions.
Section 19, linked in to the whisteblower provisions, not only provides an incentive to be of assistance, it makes it a criminal offence to fail to be of assistance while at the same time giving a guarantee that if one provides assistance in good faith, it is not something that can be used to undermine one's employment position and it ensures that the protections needed in that context are available.