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Monday 20 November 2017

DPP rejects calls for extra legal powers to aid watchdogs

Regulators operating with 'hands tied'

Dearbhail McDonald

Dearbhail McDonald

THE Director of Public Prosecutions has rejected calls for white-collar watchdogs such as the Financial Regulator and the Director of Corporate Enforcement to be given greater powers to prosecute serious breaches of financial regulations.

The call to give regulators greater powers such as arrest, detention and questioning of suspects and the power to prosecute cases beyond district court level comes as several major civil and criminal investigations into the financial crisis get under way.

Last Saturday, delegates at the DPP's annual prosecutors' conference were told that Ireland had an established lack of criminal accountability for people who commit white-collar crime and regulatory prosecutors were operating with "both hands tied behind their backs".

Barrister Remy Farrell, who prosecutes and defends in regulatory cases, told the DPP, James Hamilton, that many of the charges set out on the statute books are "completely unprosecutable" and said that the vast majority of regulatory crimes appear to have been drafted "with little reference to the possibility of prosecution".

The lawyer said that the exclusive right of the DPP to prosecute crime before a judge and jury acted as a disincentive for regulators who are confined to a "limited suite of offences", some of which require "unreal levels of criminal intent" to be proven.

"The format of many statutes and regulations is simply to require that people act in a certain way and then somewhat blithely criminalise any default," said Mr Farrell, who added that the cost of cleaning up the financial mess was "staggering".

The Government has put aside €2.6bn for NAMA's legal bills and the annual estimate of €260m for legal fees is six times the amount that will be spent on the entire prosecution service.


Mr Farrell said that owing to very significant and "systemic" structural, evidential and legislative barriers facing regulatory prosecutors, they were "essentially operating with both hands tied behind their backs" when compared to the DPP and gardai.

Supervisory bodies such as the Financial Regulator can only prosecute cases before a judge sitting alone in the district court where the maximum sentence is 12 months.

Only the DPP can try a case on indictment, before a judge and jury, but Mr Farrell said that regulatory prosecutors should be given a greater role in bringing major prosecutions on indictment.

Mr Hamilton warned that his office will require extra resources if it is to deal with an expected surge in white-collar and gangland crime cases, and he said that Ireland should be "very slow to depart" from the arrangement whereby the single agency of the DPP is responsible for prosecuting all indictable crime.

Mr Hamilton insisted that his office had close working arrangements with major regulators who investigate crime and prosecute summarily, including the Revenue Commissioners, the Health and Safety Authority, the Competition Authority and the ODCE.

But he warned that owing to major garda initiatives to tackle gangland crime and the garda/ODCE investigations into alleged financial irregularities, he was anticipating an increased burden on his office in the next few years.

Senior counsel Shane Murphy urged the DPP to consider bringing in lawyers at an earlier stage of garda and regulatory investigations to enhance prosecutorial strategy as he said that there was a public perception that the investigation of regulatory offences is very slow.

Irish Independent

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