knowledge | 8 December 2020 |
Disputes – Investigations and White Collar Crime: Hamilton Report Published with Recommendations
The Minister for Justice Helen McEntee TD noted last week:
“Corruption and ‘white-collar crime’ damages our economy, breeds cynicism in our society and is a threat to our international reputation... The State and its agencies must have all the powers available to clamp down and prevent white collar crime.”
As has been widely reported, a new cross-government plan to tackle economic crime and corruption is to be headed by the Minister for Justice, following the publication of the Review of Structures and Strategies to Prevent, Investigate and Penalise Economic Crime and Corruption (the "Report").
The review was led by Mr James Hamilton, the former Director of Public Prosecutions.
In November 2017, the government announced a suite of proposed measures aimed at enhancing corporate governance, increasing transparency and strengthening Ireland's response to white-collar crime. This included a commitment to “review and strengthen anti-corruption and anti-fraud structures in criminal justice enforcement”.
As part of this package, the then Minister appointed Mr James Hamilton to act as independent chair of a multi-agency Review Group. The Review Group’s membership included government departments and the key State agencies with responsibility for the prevention, investigation and prosecution of economic crime and corruption as well as a small number of experts from outside the public service. The Review Group met on a number of occasions and held extensive discussions including a public consultation.
The Hamilton Review Group Report identified a number of strengths and weaknesses in the existing structures for dealing with economic crime and corruption. The Report found that the principal agencies charged with the investigation and prosecution of crime function well, given the limitations imposed by their resources (focussing in particular on An Garda Síochána, the Office of the Director of Public Prosecutions (ODPP), the Office of Director of Corporate Enforcement (ODCE), the Central Bank of Ireland, the Competition and Consumer Protection Commission (CCPC), the Standards in Public Office Commission (SIPO) and the Office of the Revenue Commissioners). In some cases, the Garda National Economic Crime Bureau (GNECB) in particular, it was noted that resources are inadequate to meet both existing demands as well as the increasing demands which are certain to arise in the future, in particular in light of the anticipated increase in economic crime precipitated by the Covid-19 pandemic. Cooperation between agencies was found to be generally good but needs to be more structured and co-ordinated, particularly in public education.
The serious under-resourcing of some of the key agencies, most notably the GNECB, and the prosecution services is the primary theme running through the Report and is described as “the single overwhelming weakness in the existing system”.
The Report notes that Ireland “punches above its weight” in the world economy, in particular with reference to the financial services sector and global technological companies with their headquarters in this jurisdiction. Ireland is listed as the fifth largest provider of wholesale financial services in the EU with more than 400 international financial institutions located here. Therefore, Ireland’s vulnerability to economic crime and corruption cannot be overstated. This is borne out in reports from An Garda Siochána that indicate that the levels of economic crime investigated and prosecuted in Ireland is steadily increasing, as it is elsewhere.
Further, it is noted that one of the effects of the Covid-19 pandemic has been to accelerate the move towards online transactions and sales and to reduce the dependence on cash with a corresponding increase in contactless payments, which increases the opportunities for cybercriminals and the risks of computer crime. The need for effective measures to prevent, detect and punish criminality in this area has never been greater.
Among the Report’s recommendations are:
- The establishment of an Advisory Council against Economic Crime and Corruption to make proposals to government on strategies and policies to tackle economic crime and corruption;
- The development of a multi-annual strategy to combat economic crime and corruption and accompanying action plan. This will facilitate a joined-up and cohesive approach to combating economic crime and corruption in Ireland and provide a basis for measuring progress;
- A permanent forum of senior representatives from the relevant State agencies to facilitate greater collaboration and information sharing between these agencies;
- Greater resourcing for SIPO, ODPP, GNECB - the Review Group recommends that consideration be given to prioritising the GNECB (in particular its anti-corruption unit) with a substantial, sustained and ring-fenced increase in resources (including both additional garda detectives and civilian specialists);
- Continuous training for investigators of economic crime and corruption;
- Engagement with the judiciary on the development of training for economic crime/corruption cases and the potential for judicial specialisation in the area;
- Consideration to be given to strengthen criminal law in the area of public sector ethics, including creating new offences in such areas as nepotism;
- Amend legislation to address situations where former members of Oireachtas may have contravened their obligations under the Ethics in Public Office Acts and the matter only comes to light after the member has left office;
- Provide for the ODCE and the CCPC in their investigations to obtain evidence using covert means, in line with An Garda Síochána and the Revenue Commissioners;
- Amend Criminal Justice legislation to allow for standalone search warrants that will allow An Garda Síochána to require persons subject to arrest warrants to provide the passwords to electronic devices owned or controlled by them.
Implementing new anti-fraud and anti-corruption structures informed by the work of the Review Group is a Programme for Government commitment, and Minister McEntee has received cabinet approval to bring forward an implementation action plan for the Report’s recommendations. This will include set timelines for the introduction of a series of reforms.
The Minister’s plan will identify priorities that can be implemented in the shorter term based on the Review Group’s recommendations, such as the enactment of the Criminal Procedure Bill, which is on the current legislative programme for enactment and which will which will, among other things, streamline criminal procedures to enhance the efficiency of criminal trials, in particular around making provision for pre-trial procedures before a jury is empanelled to deal with as many legal and procedural issues as possible, to seek to avoid lengthy voir dires around in particular issues like admissibility of evidence etc, while still upholding an accused's right to a fair trial.
In terms of Ireland’s response to tackling economic crime, a renewed call for focus on greater resourcing for the SIPO, the ODPP, and the GNECB is in particular a welcome development.
Ireland’s anti-economic crime legislative response is relatively speaking up to date. It includes the Criminal Justice (Corruption Offences) Act 2018. This consolidated and modernised Ireland’s anti-bribery and corruption legislation bringing it into line with international best standards, by eg criminalising foreign bribery (albeit subject to the principle of dual criminality) and expressly providing for corporate criminal liability for bribery and corruption. There are also very broad mandatory reporting obligations in Ireland pursuant to section 19 of the Criminal Justice Act 2011, as well as other provisions under that Act which assist with the particular difficulties which arise with respect to the detection and investigation of economic crime. Other relevant measures include the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 as amended (and as will be further amended on foot of the fifth EU Money Laundering Directive), the Protected Disclosures Act 2014 and the Regulation of Lobbying Act 2015.
However, in the absence of sufficient resourcing to continue to ensure the effective detection and prosecution of economic crime and corruption in to the future, the legal framework has the potential to become essentially symbolic.
This is a timely reminder for businesses to ensure that their compliance policies and procedures are up to date around anti-bribery and corruption, anti-money laundering, lobbying etc if relevant, given the renewed government focus on tackling economic crime and also given the anticipated heightened threat of economic crime due to Covid-19.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.