Ireland: The International Investigations Review Eighth Edition

I INTRODUCTION

In late 2017, the Irish government published a suite of measures aimed at strengthening Ireland's response to corporate misconduct. During the next 12 to 18 months, significant changes may be made to the investigative and prosecutorial regimes that govern corporate Ireland.

In November last year, the Irish government published Measures to Enhance Ireland's Corporate, Economic and Regulatory Framework.1 The focus of the framework is combating white-collar crime. The actions put in place by the government have been developed to augment the existing regulatory and legislative framework in the area of corporate, economic and regulatory crime. The planned measures serve as a further commitment by the government that Ireland is open for business and is a secure place in which to do business.2

There are a number of bodies, regulatory and otherwise, which are empowered to investigate corporate conduct in Ireland including An Garda Síochána (the police), the Office of the Director of Corporate Enforcement (ODCE), the Office of the Revenue Commissioners (the Revenue Commissioners), the Competition and Consumer Protection Commission (CCPC), the Data Protection Commission (DPC), the Health and Safety Authority (HSA) and many other regulators. Offences are either summary (minor) or indictable (serious). In general, regulatory bodies are authorised to prosecute summary offences. However, the Office of the Director of Public Prosecutions (DPP) is the relevant body for the prosecution of criminal offences on indictment. The DPP has no investigative function; the relevant regulatory or investigating body prepares a file and submits it to the DPP for consideration. It is then solely at the discretion of the DPP as to whether a case will be taken in respect of the suspected offence. The Central Bank of Ireland (CBI) also has investigatory and regulatory powers, including powers of inspection, entry, search and seizure, in respect of financial institutions under the Central Bank Act 1942, as amended.

The investigation of criminal offences is primarily the function of the police. The police have a wide range of powers, which include: to approach any individuals and make reasonable enquiries to stop and search; to seize evidence; to enter and search premises; and to detain and arrest. There are a number of specialist units that support the police with investigations into corporate misconduct, including the Garda National Economic Crime Bureau (GNECB), the Criminal Assets Bureau (CAB) and the Garda National Cyber Crime Bureau (GNCCB). The GNECB investigates economic crime, including fraud, the CAB investigates the suspected proceeds of criminal conduct and the GNCCB is tasked with the forensic examination of electronic data seized during the course of criminal investigations. The ODCE is afforded a wide range of investigative powers under the Companies Act 2014 and is responsible for enforcement of company law, including by way of fact-finding investigations, prosecutions for suspected breaches of company law, supervision of companies in official and voluntary liquidation and of unliquidated insolvent companies, restriction and disqualification of directors and other company officers, supervision of liquidators and receivers and the regulation of undischarged bankrupts acting as company officers. In respect of prosecution, the ODCE has the power to prosecute summary offences and to refer cases to the DPP for prosecution on indictment.3

The CBI is responsible for regulating the financial services industry. Its enforcement work can be divided into two processes: an administrative sanctions procedure by which the CBI investigates breaches of financial services law by regulated firms and individuals; and a fitness and probity regime pursuant to which individuals in designated positions within regulated firms must be competent, capable, honest, ethical and of integrity, and financially sound. The CBI's investigative powers include compelling the production of documents, compelling individuals to attend interviews and conducting on-site inspections.

The Revenue Commissioners is the government agency responsible for the assessment and collection of taxes. It also has investigative and prosecutorial powers, which include: to enter and search premises; to inspect goods and records; to take samples; to question individuals; to remove and retain records; to stop, search and detain vehicles; to seize and detain goods and conveyances; and to search and arrest individuals. The investigation and prosecutions division is responsible for the development and implementation of policies, strategies and practices in relation to serious tax evasion and fraud offences. It has a wide range of powers, which include: to conduct civil investigations;4 to conduct investigations into trusts and offshore structures, funds and investments;5 and to obtain High Court orders.6 Of particular significance is the power to obtain information from financial institutions and procure search warrants to this effect.7

The CCPC is responsible for enforcing competition and consumer protection law and holds extensive powers of investigation in relation to suspected breaches of competition and consumer protection law. The CCPC has powers of entry and search and seizure, including the power to search any premises used in connection with a business.8 Its search powers are not confined to a company's offices but extend to the homes of directors or employees. The regulatory body previously known as the Office of the Data Protection Commission is now known as the Data Protection Commission (DPC) under the Data Protection Act 2018. It is responsible for upholding the rights of individuals and enforcing obligations upon data controllers under data protection law. If the DPC receives a complaint, it is obliged to investigate the alleged data protection breach. Additionally, the DPC may investigate the unlawful processing of personal data and audit data processors of its own accord.

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Footnotes

* Karen Reynolds, Claire McLoughlin and Nicola Dunleavy are partners at Matheson.

1 Measures to Enhance Ireland's Corporate, Economics and Regulatory Framework, November 2017.

2 Ibid.

3 Section 949(c) and (d) of the Companies Act 2014.

4 Section 899 of the Taxes Consolidation Act 1997.

5  Ibid, Section 895.

6 Ibid, Sections 902A and 908.

7 Ibid, Section 908C.

8 Section 36 of the Competition and Consumer Protection Act 2014.

Originally published in The International Investigations Review Eighth Edition.

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