Saturday 15 June 2019

The best small country in the world in which to be a white-collar criminal?

Garda Commissioner Noirin O’Sullivan, left, and Justice Minister Frances Fitzgerald, launch the Second National Strategy on Domestic, Sexual and Gender-based Violence 2016-2021 earleir this month. Photo: Caroline Quinn
Garda Commissioner Noirin O’Sullivan, left, and Justice Minister Frances Fitzgerald, launch the Second National Strategy on Domestic, Sexual and Gender-based Violence 2016-2021 earleir this month. Photo: Caroline Quinn
Colette Browne

Colette Browne

Following the publication of the Banking Inquiry report, politicians have assured the electorate that new laws and tighter regulations mean the mistakes of the past will never be repeated. However, there is little evidence to support this optimistic appraisal.

Promises to tackle white-collar crime were first made in 1998. In a review of company law compliance and enforcement, Michael McDowell found that most of the offences contained in the Companies Acts had "never been the subject of prosecutions" and that Ireland was "characterised by a culture of non-compliance".

"Those who are tempted to make serious breaches of company law have little reason to fear detection or prosecution. As far as enforcement is concerned, the sound of the enforcers' footsteps on the beat is simply never heard," he said. That report ultimately led to the setting up of the Office of the Director of Corporate Enforcement (ODCE) in 2001, with one headline at the time screaming, 'Corporate Enforcer to get Tough on Crime'.

"In the past, enforcement of company law has been patchy and very reactive," said then ODCE director Paul Appleby, noting that prison terms for certain offences had been increased from three years to five.

As it turned out, the potential of an increased custodial sentence didn't matter very much. It would be 10 years before a single person was jailed due a prosecution initiated by the ODCE.

Jail sentences were not the norm because most of the criminal convictions secured by the ODCE have been minor offences in the District Court even though, alarmingly, that number has decreased dramatically in recent years - as the investigation into Anglo sucked up most of its resources.

In 2004, the ODCE secured 66 convictions in the District Court. In 2014, the last year for which figures are available, there were just 19 convictions while two cases were tried on indictment in the Circuit Criminal Court.

The failure of the ODCE to investigate serious crime can perhaps be explained by comments made by its director Ian Drennan in May 2014 when he revealed his office employed just one forensic accountant and needed at least five more to make it "credible".

"If the office is to reach its full potential and realise its ambitions of concentrating on suspected wrongdoing at the more serious end of the spectrum, the current insufficiency of in-house accountancy expertise will have to be addressed," he said.

Later that year, barrister Remy Farrell, who specialises in white-collar crime, said the under-resourcing of regulatory agencies was "endemic" and a "scandal".

"One of the clearest lessons of the criminal justice system generally is that if you want to stop people committing offences, it has very little to do with the penalty. It's actually to do with the likelihood of getting caught. The truth is that under-resourcing for regulatory bodies in this country is now endemic. Now is the perfect time to commit regulatory white-collar offences," he said.

His assessment was that, four years after a financial collapse that bankrupted the country, specialist-staffing levels at the ODCE were "enough to make the tin-pot dictator of a banana republic blush".

Given these scathing comments, one would have thought that the Government would have acted swiftly and immediately increased the numbers of forensic accountants in the ODCE.

However, when its 2014 report was published last June, it revealed that the ODCE was still operating with just one forensic accountant. Thirteen months after Mr Drennan appealed for more staff, permission had just been secured to hire them but the recruitment process hadn't even started.

The ODCE is not the only organisation tasked with investigating white-collar crime that is crippled by chronic under-investment and a lack of resources. Published late last year, the Garda Inspectorate Report found that the Garda Bureau of Fraud Investigation (GBFI) "do not have dedicated financial analysts and currently have to ask for assistance from other departments".

It noted that the GBFI "are struggling to manage the volume of suspicious financial transaction reports forwarded to them" and that Garda divisions "are investigating serious fraud without always having the necessary skills and resources to conduct a thorough investigation".

Amid great fanfare in 2011, the Government passed new legislation that made it a serious offence, punishable by up to five years in prison, to withhold from gardaí any material information that might secure the apprehension, prosecution or conviction of a white-collar criminal.

Speaking in the Dáil as recently as last month, Justice Minister Frances Fitzgerald described this legislation as "an important step forward in our response to [white-collar] criminality".

But what is the point of passing laws which hugely increase the workload of gardaí when they don't have the requisite resources, or skill set, to investigate these crimes?

In 2014, Mr Farrell said these new laws had "swamped" the GBFI and that, of the reports that they did have time to consider, just one in 10 actually resulted in a conviction.

These comments echoed remarks made by Mr Justice Peter Kelly in 2011, when he said that he had sent "prima facie" evidence of criminality in commercial cases he presided over to the authorities but that no prosecutions had ensued.

"This is not a desirable state of affairs. An apparent failure to investigate thoroughly yet efficiently and expeditiously possible criminal wrongdoing in the commercial and corporate sectors does nothing to instil confidence in the criminal justice system," he said.

According to last year's Garda Inspectorate Report, nothing has changed and the GBFI is still struggling to do its important work in the face of inadequate staffing levels and resources.

When the Justice Minister is queried on inadequate staffing levels in the GBFI, she invariably responds that the deployment of resources within the force is a matter for the Garda Commissioner. In other words, it's nothing to do with her.

Welcome to political accountability in Ireland in 2016, where the Justice Minister is not responsible for resourcing the investigation of white-collar crime - just like the Health Minister is not responsible for patients languishing on trolleys.

Irish Independent

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