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)
Yes. I thank the Senator for the questions he has raised and will take the second query first. The second one is very much to the point. The Senator is absolutely right, one cannot retrospectively criminalise a failure. If an individual had information on, say, 1 February 2010, they should have provided to the Garda in regard to current investigations and failed to provide it - it is not, of course, an offence, as we stand here today, for them to have failed to provide it. Let us assume this legislation is passed and signed by the President and is operative in, say, August. The person who had the information previously still has it today. If it is information they know of or information to which they have access, they still have it. At that point in time there is an obligation on them to provide it and if they do not within a reasonable period provide it to the Garda and if it emerges that this was information they concealed, which would assist the Garda in a current uncompleted investigation in respect of which no prosecution has yet ensued, they will be liable to be charged. I do not want to beat about the bush.
If there are people today who have information that they have not yet made available to the Garda Síochána with regard to the investigations taking place into our financial institutions, and if they have access, for example, to information held electronically that the Garda does not yet know about, and if they know how to access that information and have not revealed it, I want a message to go out from this House that following the enactment of this Bill they will be under a legal obligation to assist the Garda in its inquiries. Should it emerge, following the enactment of this Bill, that they failed to do so, they themselves will be liable to criminal charge. This is why this Bill is so important in the context of current investigations.
Current investigations will be assisted in the context of the Garda in relation to other provisions being able to make application to the courts - the District Court - to access documentation electronically held, information that may be held by witnesses and that would assist the investigation. Section 19 applies to people who are concealing and continuing to conceal where there is a current investigation in respect of which no decision has been made to prosecute.
Indeed, even where a decision has been made to prosecute, if the prosecution has not yet ensued and the trial has not taken place, under this legislation, a person would still be under an obligation to bring that information to the attention of the Garda because it would be relevant to the alleged committal - I must be careful in using that word - of a criminal offence. This is why this legislation is so important and why, on a sunny Wednesday at the end of July, the Seanad is sitting specially to assist us in completing its enactment before the summer vacation.
On the second question raised by the Senator, there was an appalling laxity with regard to dealing with undertakings. What happened with solicitors who gave undertakings that should not have been given with regard to bank borrowings that they themselves were engaged in was a product of the failure of the banks and financial institutions to provide adequate records and oversight. There was a lack of records of undertakings given. I share the view of the Senator that mechanisms to record undertakings are desirable, and I know the Law Society has a new approach to this issue. That is something we must consider further to ensure we have systems in place to prevent this type of thing from happening again. Of course, it was primarily the consequence of individuals behaving in a fraudulent manner by misrepresenting their financial circumstances and not making clear the nature of securities previously given to banking institutions. It was a product of circumstances about which we need to be cautious. As a member of the legal profession, I am conscious of this.
The legal profession, like any other profession, is not perfect; probably no profession will ever be perfect. There will always be individuals in every profession who misbehave. Many years ago, however, the position with regard to borrowing from a bank or any other financial institution was that the financial institution would have its own solicitor checking documentation and the borrower would have his or her solicitor; if it was a solicitor borrowing, he would probably represent himself. At any rate, the bank would have its own solicitor who would check documents. The criticism at the time was that the borrower ended up having to pay for two lawyers. If he was a solicitor he would presumably not pay himself for the work he did when he borrowed on the security of property he owned, but the ordinary borrower who was not a lawyer would end up paying his own solicitor plus the cost of the bank's lawyer whose job it was to ensure the documentation was in order.
In a move to try to reduce legal expenses for the public - a move that was well-intentioned - banks stopped employing their own in-house lawyers or other firms of solicitors to check that adequate security was given and began to agree to take undertakings from solicitors. Ninety-five percent of those in the legal profession, in fairness to them, dealt with those issues in a correct, trustworthy and honourable manner, and those 95% are now paying what I would describe as the cost of the small number of individuals who went rogue and misused the giving of undertakings for personal gain. This has resulted in enormous compensation claims against the solicitors' compensation fund, which is funded by honest solicitors, who are now picking up the tab for those who did go rogue.
There is a concern to ensure that where solicitors have been engaged in criminality and have been struck off, court proceedings by way of criminal prosecution should, where appropriate and within a reasonable period of time, be taken by the Director of Public Prosecutions. As Minister for Justice and Equality, I have no means of communicating directly with the Director of Public Prosecutions, who is, rightly, an independent officer by statute, but I am concerned that when the Garda completes an investigation into alleged criminality by members of the solicitor profession - or, indeed, any other profession - all appropriate prosecutions are initiated within a reasonable period by the DPP. Measures should not be unduly delayed and there should be no sense, whether we are dealing with alleged criminality in the banking sector, the legal profession or any other profession, that individuals within any particular group have impunity with regard to their bad conduct or alleged criminal conduct. We await the outcome of the consideration the DPP is currently giving to files that have been furnished to him.