In what can be regarded as a further product of the fallout from the banking crisis, the new Criminal Justice Act 2011 (the "Act") was signed into law on 2 August 2011. The Act introduces substantial changes to the law relating to the investigation of white collar crime. Companies and individuals operating in Ireland should be aware of its provisions and the obligations it places upon them, not least because of the criminal sanctions it prescribes.
For the purposes of the Act, white collar crime encompasses criminal offences in the areas of banking and finance, company law, money-laundering, fraud, corruption, competition (anti-trust), consumer protection and cyber-crime. Part 3 of the Act, which came into operation on 9 August 2011, gives new powers to those conducting criminal investigations to seek orders from the District Court compelling the production of documents and information relevant to the investigation of such white collar crime.
The Act was employed for the first time in September 2011 to compel an investor in what was formerly known as Anglo Irish Bank to co-operate with the investigation into alleged fraud at the bank. The Director for Corporate Enforcement was granted District Court Orders requiring the investor to produce certain documents and information relating to a loan he allegedly received from Anglo Irish Bank to enable him to purchase shares in the bank. The investor in question had previously declined to co-operate with investigations into this loan arrangement.
Though the purpose of the Act is to enable fuller investigations of white collar crime, the scope of the new offence of 'withholding information', in particular, is quite unclear. This offence creates a legal obligation for individuals to report instances of offences within the scope of the Act to the Garda Síochána. An issue arises, however, in that these offences are not just confined to what might be considered as serious financial crimes. Certain company law and more minor theft and fraud offences are also caught by the obligation to report. The applicability of this offence to, and the extent of the obligation upon, legal professionals to report relevant offences is also unclear.
In a recent debate in the Dáil (Irish lower house of parliament), the Minister for Justice, Alan Shatter addressed the concerns raised by one TD (member of parliament) that the new offence of withholding information might end up being used in a much broader range of 'simple' theft offences than was envisaged by legislation specifically focusing on combating white collar crime. The Minister said that he had no proposals to amend the 2011 Act at this time, "particularly when the Act is still at such an early stage of its operation. I will, of course, keep its operation under review."
It remains to be seen how these sweeping new provisions will work in practice over the coming months.
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