A new Criminal Justice Bill 2011 (the “Bill”) has completed the final stages of passing through the Irish Parliament and is expected to be signed into law by the President shortly. Once enacted, the Bill should speed up and define the parameters of white collar crime investigations. The Bill aims to facilitate the investigation of white collar crime and eliminate causes of delay in such investigations. The Bill deals with offences in areas such as banking, company law, money laundering, corruption and taxes.
The Bill provides for a positive whistleblowing obligation and, if enacted, financial institutions (amongst others) would need to put procedures in place to deal with this reporting duty. The Bill also imposes a requirement on employees to ensure that whistle-blowers are not penalised for disclosing information relating to relevant offences. Notably, the Bill does not just focus on those individuals suspected of involvement in a relevant offence. In fact, it envisages that witnesses who are not suspects in a criminal investigation may sometimes be compelled to assist the Gardaí with their investigations. The withholding of information which might be of material assistance to the Gardaí will constitute an offence punishable by up to five years imprisonment.
New provisions are also proposed to expedite the process of producing documentation in the context of investigations of the offences covered by the Bill. A member of the Garda Síochána can apply to the District Court for an order directing a person to make available documents or provide information. In either case, the District Court judge must be satisfied that there are reasonable grounds for believing that the documents or information are relevant to the investigation or constitute evidence of the commission of the offence. While documents which are taken away may be used as evidence in criminal proceedings, statements made may not. A person who fails to comply with such an order, or who provides false or misleading information, will be guilty of an offence, punishable by up to two years imprisonment.
Any such order would not compel the production of any document which is subject to legal professional privilege. In circumstances where a person refuses to produce a document on the grounds of legal professional privilege, either the person so refusing or the Gardaí may apply to the District Court for a determination as to whether the document is privileged. Where a substantial volume of documents is submitted for determination, the Judge may appoint an independent party to examine the documents and prepare a report to facilitate the Judge in his determination.
Had it been enacted sooner, the Bill may have been of assistance to the Director of Corporate Enforcement (the “Director”) in his investigation of Anglo Irish Bank, particularly in light of a recent judgment made by Justice Kelly, criticising progress of the Director’s investigation. In that application(3), the Director had sought a further extension of warrants granted in 2009, allowing it to obtain, and deal with particular materials. Justice Kelly described the progress since 2009 as “not at all satisfactory”. The Director reacted to the judgment stating that, while more than 200 people had cooperated with his office, more than 10 witnesses were not cooperating, and that obtaining statements from reluctant witnesses was a time-consuming task. The Bill, it would seem, would make it possible to compel such witnesses to co-operate with future investigations of this kind.