Saturday 21 October 2017

Remy Farrell: The criminal justice system has failed us

AT much the same time as the upper echelons of the management of Anglo Irish Bank were engaging in frat-boy humour on the subject of how to get one over on the Financial Regulator, others were engaging in a more sober analysis of the impact of the then nascent financial crisis. The late, great Christopher Hitchens was comparing America to a banana republic, as it had failed to hold those responsible for the crisis accountable.

In an article in 'Vanity Fair' in October 2008, he set out some of the basic characteristics of a banana republic.

"The chief principle of banana-ism is that of kleptocracy, whereby those in positions of influence use their time in office to maximise their own gains, always ensuring that any shortfall is made up by those unfortunates whose daily life involves earning money, rather than making it. At all costs, therefore, the one principle that must not operate is the principle of accountability."

The other symptoms of banana-ism, each of which would be immediately recognisable to the average Irish citizen, are too depressing to rehearse.

Sticking solely with the question of accountability, it is staggering that five years on Ireland has yet to ask the pertinent questions as to what caused the crisis, let alone obtain any of the answers.

There is little doubt that much of what caused and exacerbated the financial crisis in this country can fairly be attributed to criminal conduct. On that basis, we might reasonably expect that our criminal justice system might play a central role in holding those responsible accountable for their actions and shedding light on events which have impacted on virtually all of us.

So why hasn't it?

It is often said that white-collar and regulatory offences are complex and difficult to prosecute. This is undoubtedly so in many cases. However, one of the responses of prosecutors and regulators in other countries is to go for the 'headshot'. In other words, prosecute simpler cases that are much less resource-intensive. The example of Al Capone springs to mind.

However, it must be acknowledged that prosecutors and regulators elsewhere have a significant advantage over their counterparts here. In most other countries, the laws of evidence are part of a coherent and sensible code. In Ireland, they are eye-wateringly complex and in large part irrational.

The main offender is the hearsay rule. It tends to feature prominently in white-collar cases because much of the evidence is based on documents.

There have been various sticking plasters applied to it, which have largely had the effect of making it even more complex. It is not uncommon to find that a particular document will be admissible evidence in relation to one particular charge but not in relation to another in the same case. Try explaining that to a jury.

There are also more subtle structural problems. The fact that regulators are not entitled to prosecute cases on indictment themselves often acts as a disincentive to bringing such cases. It also means that the responsibility for failing to engage in hard regulation by means of prosecution is much harder to attribute to any particular player. As with so many other problems, it is simply put down to "systems failure".

None of these problems are new. They existed before the financial crisis. Indeed, the failure to engage in hard regulation (or any regulation for that matter) is surely one of the factors that contributed to the perfect storm that was the financial crisis.

There have been a few legislative interventions since the advent of the crisis. Generally, these have been heralded as game-changers. In truth, they have been little more than nibbling around the edges.

This is surprising. The legislature is more than capable of reacting to crises when it needs to. The response in the wake of the murder of Veronica Guerin provides testimony to this.

Given that we are now over five years into this crisis and that our criminal justice system has managed little more than the occasional sclerotic spasm, the question must be asked as to whether it is fit for purpose. The failure to react in a timely fashion raises fundamental questions.

Remy Farrell is a Senior Counsel

Irish Independent

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