Ivana Bacik

Criminal Justice Bill 2011: Second Stage

Tuesday, 26 July 2011

Senator Ivana Bacik:     I wish to share time with Senator Hayden.

I welcome the Minister who is a regular visitor to the House. I also welcome the provisions in the Bill to address white collar crime seriously. In a way it has not been dealt sufficiently seriously previously. As Senators Bradford and O’Donovan acknowledged, there is a perception among the public, in particular, that those engaged in white collar crime, particularly in the banking sector, have been getting away with it for too long. There is concern that it should be dealt with seriously and it is welcome that we are doing so. I also welcome the commencement of section 27 of the 2001 Act, which, as the Minister said, should have happened before now.

There is concern about the lack of prosecution arising out of what happened in the banking sector and, in particular, INBS and Anglo Irish Bank. As Senator Quinn mentioned, there is a sense that reckless bankers went on a testosterone fuelled lending spree, which resulted in the false foundation of the boom and the subsequent collapse, with disastrous consequences for the economy. The bank guarantee introduced by the previous Government in September 2008 made a bad situation worse by converting private debt into sovereign debt, which resulted in the IMF having to intervene. The Government seeks to deal with the consequences of that in a context not of its making. Earlier on the Order of Business, there was a cross-party welcome for the reduction on the interest rates on the bailout loans and the renegotiation that took place last week. None of us in government chose to be in this position. Sinn Féin was highly critical earlier but we will not take lectures from that party on this because we are trying to deal with the consequences of what went on and we need to be able to pay for public services, which is the bottom line.

There is immense public worry about what will come down the tracks in the budget. All of us are also concerned about that. More than 400,000 people are unemployed while those who are working face job losses and pay cuts. The worry would be easier to cope with if there was a sense of justice being done at the top level and that is why we are debating this legislation. The Minister referred to a perception of delay in dealing with those who engaged in reckless lending. Clearly, some of that was not criminal but where criminality took place, prosecutions should result. I have discussed this with other criminal lawyers and prosecutions should be brought under section 10 of the Criminal Justice (Theft and Fraud Offences) Act 2001 for false accounting. This provides for an offence, which appears to have been committed. Simpler offences such as that could be prosecuted more swiftly than the complex corporate offences that are also under investigation arising from the actions of the banking sector.

While the Bill seeks to strengthen procedures for dealing with white collar crime, existing laws could have dealt with such crime before now. They have not been used enough. Part of the problem has been a lack of enforcement and the absence of a culture in which white collar crime was taken as seriously as street crime. The legislation contains welcome provisions, particularly that relating to whisteblowing. That was added on Committee Stage on the Dáil. The Minister acknowledged that the programme for Government contains a commitment to [878]introduce more comprehensive legislation on whistleblower protection in the medium term. I do not know whether he can outline the medium term because that legislation is long overdue. Section 20 and the Second Schedule will go some way to providing protection for whistleblowers. It is vitally important in aiding investigation into white collar crime. The offence of withholding information in section 19 is also welcome and Part 3, generally, provides clarity about disclosure of documents and information, which has implications for investigation of white collar crime.

Part 2 is the most substantive element of the legislation with section 7 providing for enhanced powers to suspend a detention period. Amendments in this Part relate to the detention regime under the Criminal Justice Act 1984, which are welcome, particularly section 9, which seeks to bring clarity to the law on access to a solicitor. I have always thought we should go further and provide for the right to have a solicitor present during questioning, as is the case in England and Wales under the Police and Criminal Evidence Act 1984. That would save a great deal of court time and expense currently spent on voir dire. Many issues raised during criminal trials and judicial reviews relate to questioning during detention periods. If the right to have a solicitor present was provided for in law, it might address many of these issues. At least section 9 will clarify the need for consultation before interviews are commenced. In practice, any portion of an interview carried out in a Garda station before a suspect has had access to a solicitor tends to be excluded.

I am glad the issue of overnight suspension has been clarified. Section 7 provides for the power to suspend an interview for up to four months, the rationale behind which I understand. However, several points need to be clarified. I note the member in charge who gives permission for the change of time to return must be an inspector. Has any thought been given to assigning this duty to a higher rank?

Most of the offences covered in the Schedule are complex. Section 3 refers to the complexity of investigations and so forth. Sections 4, 17 and 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 may not relate to white collar crime and may not be so complex. Was any thought given to the issue of the use of the new power in section 7?

I will raise other points on Committee Stage. I welcome the Bill.

Criminal Justice Bill 2011: Committee and Remaining Stages

Wednesday, 27 July 2011

Senator Ivana Bacik:     I would like to raise a question I asked the Minister regarding section 20 on Second Stage yesterday. This section, which deals with whistleblower protection, received great support on Second Stage. I believe it was added on Report Stage in the Dáil. At that point the Minister said that comprehensive legislation on whistleblowers would be introduced, as is the commitment in the programme for Government, in the medium term. I asked yesterday if there was any sense of what the medium term was or if he could provide a timeframe. He helpfully said he would be dealing with some specific questions when we came to particular sections on Committee Stage, so I thought I might ask the question again now.

Senator Ivana Bacik:     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 [975]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.

Senator Ivana Bacik:     I take the Minister’s point and it is clear that we want to see white-collar crime covered by this legislation. It is an act that is quite difficult to define precisely and I accept there may be complex investigations involving section 4 theft offences, or those covered in sections 17 and 18. That may be particularly true if there is a range of different offences covered. We all want to ensure, to use drug analogies, that the mules or couriers will not be prosecuted while people at the top levels escape. That is a key issue. We spoke yesterday about the need for enforcement, the strengthening of the Office of the Director of Corporate Enforcement and appropriate resourcing of the Garda, which is part of that matter.

In response to the Minister’s anecdote about the man with the chickens, the defendant sounds like Fantastic Mr. Fox. I hope his ending was as happy as Mr. Fox’s.

Question put and agreed to.

Schedule 2 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Senator Ivana Bacik:     I join other Members of the House in thanking the Minister and his staff for preparing this Bill. Each of us welcomes the commitment to pursue white-collar crime, as exemplified in this Bill. We particularly welcome section 19, which relates to the withholding of information. As Senator Bradford said, it is important for this provision to be publicised. I think it will be.

Question put and agreed to.

Sitting suspended at 12.35 p.m. and resumed at 1.30 p.m.