Wednesday, 27 July 2011
Criminal Justice Bill 2011: Committee and Remaining Stages
Ivana Bacik (Independent)
I wish to raise an issue about the extent of the offences covered under Schedule 1.
This Schedule deals with the list of relevant offences defined under section 3. Most of those offences clearly cover the area we all understand to be white collar crime. The Minister added section 13(5) of the Unit Trusts Act 1990 in the Dáil on Committee Stage and pointed out that this was an offence requiring generally a complex investigation. Section 3 gives the Minister power to specify further relevant offences relating to a number of areas and it goes on to say if the Minister considers that it would be appropriate to add other offences "by reason of the nature of the offence ... and the prolonged period of time that is generally required for the investigation of such an offence as a result of the complexity that generally arises in such an investigation ....". It goes on to list why these investigations into white-collar crime tend to be complex. All of us accept that, which is why we accept the section 7 power to suspend detention, which is quite a significant departure from the current normal rules on detention under the 1984 Act.
I have a concern, raised by other criminal lawyers, about the scope of the offences allowed for under the Schedule. Most are very specific white-collar crime offences - under the theft and fraud offences heading there is an offence under section 4 - the standard theft offence - and sections 17 and 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Section 4 is the theft offence, which can be as minor as shoplifting or as significant as a major white-collar crime. Sections 17 and 18 relate to handling and possession offences, which can range from minor to major incursions. Both are set out as indictable offences in the 2001 Act. Section 53 of that Act allows for summary trial, and in practice many section 4 thefts are prosecuted through a summary trial mechanism.
We all have a very clear idea about the sort of offences this Bill is designed to cover. The suspension of detention periods in section 7 should be used for offences where investigations are complex and the Garda may have to pause to examine documents or computer files. There is a valid concern that the Bill would allow for section 7 to be operated even in respect of an offence that may ultimately be quite minor. I seek an assurance that this will not be done and that we might review the legislation if gardaí apply the provisions of the Bill to crimes that do not fall within the white-collar crime or complex investigation definition we have provided for.
I made a point in respect of the section 7 power on Second Stage. It is operable on the word of a member in charge. There are very extensive powers provided to members in charge. They have tended to be at a fairly junior level in a Garda station in my experience and they would not be as senior as gardaí running investigations. The Minister has a very extensive burden of legislation to come in the autumn, as promised, but it may be worthwhile to examine the nature of powers given to members in charge and if it is appropriate that the safeguards built into powers like the section 7 suspension power are the responsibility of a member in charge rather than a more senior garda. It could be appropriate to adjust that in future.
The key point in the Schedule is the scope of offences covered. I know the offences of burglary and robbery are excluded and would not be seen as white-collar crime offences. Theft and possession offences may be classed as white-collar crime but, equally, they may not be. The vast majority of thefts prosecuted are not white-collar crime. The concern is whether section 7 can be used where the section 4 offence of theft is being charged and where circumstances do not indicate white-collar crime or complex investigation.