Monday 17 December 2018

Analysis: Plan for a new body to fight corporate crime comes in the wake of Seán FitzPatrick case

 

Kevin O’Connell destroyed evidence in the case in error. Photo: Collins Courts
Kevin O’Connell destroyed evidence in the case in error. Photo: Collins Courts
Shane Phelan

Shane Phelan

Down through the years, much of the reform of enforcement and regulation in the financial sector has come in response to one crisis or other.

The latest Law Reform Commission report offers a potted history of some of these crises and the reforms that followed.

For example, in recent decades, the reaction to the collapse of Irish Trust Bank in the 1970s and Merchant Banking Ltd in the 1980s led to some limited, though important, reforms of banking and corporate regulation.

These collapses fed into the 1992 report by the Government Advisory Committee on Fraud, which recommended the setting up of the Garda Bureau of Fraud Investigation, now called the Garda National Economic Crime Bureau.

It also led to significant reform of legislation around fraud and related offences.

Both the bureau and the reformed legislation would feature heavily in the prosecution of offences arising from the 2008 banking collapse.

The crash taught us that while the Financial Regulator was conferred with significant supervisory and regulatory powers in 2003, the "light touch" approach it adopted between then and 2008 meant it did not function effectively.

As a direct response to these failings, a "risk-based" approach to financial regulation has been in use for much of the past decade.

Now history appears to be repeating itself.

In its report, the Law Reform Commission is calling for the setting up of a new agency, similar to the Criminal Assets Bureau, to investigate white-collar crime. Such a move would likely spell the end of the current corporate watchdog, the Office of the Director of Corporate Enforcement (ODCE), as we know it.

It would face being replaced or radically overhauled.

The crisis which prompted a reassessment of the ODCE was the bungled handling of the prosecution of former Anglo Irish Bank chairman Seán FitzPatrick, who was last year acquitted of misleading the bank's auditors about millions of euro in loans.

During Mr FitzPatrick's trial, it emerged the ODCE "coached" key prosecution witnesses, contaminating their evidence and rendering it unreliable.

A member of staff, then ODCE legal adviser Kevin O'Connell, also destroyed evidence in error.

The commission was careful to point out that a lack of resources was a central problem faced by ODCE in managing such a complex prosecution.

It also said it was important not to ignore some of the achievements of the ODCE.

These include the huge improvements seen in compliance with company law generally and the hundreds of reports from company liquidators, auditors, examiners, professional bodies and the general public that the ODCE acts upon each year.

However, the commission goes on to say that the statutory remit of the ODCE was and remains to ensure the enforcement of basic company law requirements, such as filing of annual company accounts and compliance with statutory duties of directors.

"It was not intended primarily as a body with responsibility for initiating prosecutions on indictment in complex corporate cases," the report states.

The ODCE, it said, was a small agency with very little experience of dealing with the complex issues of evidence present in such a high-profile prosecution.

Irish Independent

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