White-collar crime will flourish so long as our corporate enforcer's hands remain tied
Most legal historians draw a direct correlation between the phasing out of public executions and the phasing in of modern uniformed police forces. The function of the public execution in earlier times was not solely punitive. Rather it was intended to operate as a dramatic and grizzly demonstration of the wages of sin – pour encourager les autres.
While such public displays no doubt had their desired effect on the gullible and uneducated, more cunning criminals were less likely to be deterred as the chances of detection, investigation and prosecution remained slight. Thus the introduction of the modern uniformed police force – an obvious physical presence on the street which deterred and dis-incentivised the commission of crime while simultaneously making detection and punishment a much more likely prospect.
This lesson seems to have been entirely forgotten in the current debate about the investigation and prosecution of white-collar and regulatory offences. Perhaps because policing of this sort is an expense not to be countenanced in the current climate.
Public anger at the failure to investigate and prosecute such offences is well-founded. However, the assumption that things must now have changed and a different attitude prevails is not only wide of the mark, it is plain wrong. If anything it is probably easier to get away with white-collar crime right now then it ever has been in the history of the State.
In March, the Director of Corporate Enforcement, Ian Drennan, published his annual report, in which he noted that his office had only been given the resources to employ two accountants for the purposes of the many criminal investigations that his office was mandated to undertake. Worse still, one of the accountants had recently retired and a replacement was still awaited. The fact that only one accountant is available to the Office of the Director of Corporate Enforcement (ODCE) for the purpose of such investigations is of itself a national scandal that would be an embarrassment even in a banana republic.
He went on to say that he would need at least another five accountants to "be capable of operating credibly". The message was loud and clear – at present the ODCE is not capable of operating credibly. It's not even within a country mile of it. He also noted that a great deal of his office's budget had been sucked into the "resource-intensive" Anglo prosecution. In other words, the much greater part of the hard enforcement function of the ODCE is focused on past rather than present events.
Mr Drennan is to be congratulated for bravely setting out the problem of under-resourcing of his office in such clear terms, although he is probably unlikely to be thanked by Government for sticking his head above the parapet in this way.
Even the most cursory glance at funding figures for the ODCE show that its allocation has been cut more and more every year. The same is true of the allocation for the DPP who is expected to prosecute regulatory and white-collar offences of this sort.
It is quite extraordinary to reflect on the fact that NAMA spent more than the DPP did in 2012 on legal fees and the HSE spent roughly 2.5 times as much. This is all the more surprising when you consider that the DPP dealt with 15,000 files and prosecuted 4,000 cases on indictment in the same year for the relatively modest cost of €19m in legal expenses.
It is not only the regulatory bodies which have had their capacity to investigate and prosecute white-collar offences systematically degraded over the last few years. The Garda Bureau of Fraud Investigations is now so under-resourced that they are in a position to consider in detail only a small proportion of the offences reported to them. Of those that they are able to consider, the resources only exist to pursue investigations in respect of an even smaller proportion still.
Given the difficulty of detecting white-collar offences in the first place, it is truly depressing to consider that only a fraction of a fraction of those that are reported to the gardai are likely to be acted upon.
Recent trials have clearly demonstrated that the ODCE, the gardai and the DPP have the wherewithal when given the resources to conduct complex investigations and prosecutions.
There are a lot of clever, able and experienced people working in these bodies. More importantly still, juries have clearly demonstrated an ability to deal with complex evidence in such cases in a sophisticated way.
So, for those who have the inclination to ring radio talk shows to ask why white-collar prosecutions aren't being brought where crimes have clearly been committed the answer is actually quite simple: because we are not prepared to pay.
Not only do we continue to tolerate what was euphemistically described as 'light-touch regulation' but the very machinery of hard regulatory enforcement has been gutted in recent years. Not only have things not improved, they have gotten worse.
As long as that remains the case, we will live in a veritable golden age for hucksters and fraudsters of all sorts. White-collar crime is highly profitable and the chances of being hanged, drawn and quartered – publicly or otherwise – are so slight as to be insignificant.