THERE IS not the same level of commitment to reforming the law on white-collar crime to make prosecutions easier as there is in relation to “ordinary” crime, a conference heard at the weekend.
Dr Shane Kilcommins of UCC was speaking to a conference on white-collar crime hosted by the Irish Women Lawyers Association in Dublin.
“The commitment given to adapting the criminal law has been enormous in recent years,” he said. “We have broadened criminal offences, extended the use of mandatory sentences, restricted bail, extended detention times etc. I don’t see the same commitment to dealing with white-collar crime.”
He was responding to a question regarding the fact that the law relating to the prosecution of while-collar crime was described as “complex”, while most prosecutions relating to it took place in the District Court. “Are we living a lie that we do prosecute white-collar crime?” Mary Ellen Ring SC asked the speakers, referring to recent bank scandals.
Kevin Prendergast of the Office of the Director of Corporate Enforcement (ODCE) said it would be happy with anything that made prosecutions easier. Referring to the crime of “market abuse”, he said it had never been tested in court, so he did really know what it meant in practice. “Only when we take a case will we know how the courts will interpret the law on it,” he said.
Dr Kilcommins said that the way in which we dealt with white-collar crime was very socially embedded and was reflected in the way in which the criminal law was taught.
“The way we teach it, it involves the punishment of the poor,” he said. “In Ireland for the past 30 years the strategy has been always administrative, rarely punishing and never imprisoning,” he said, though recent reforms showed that regulatory offences had more and more punitive bite, with a five-year sentence provided for in the Competition Act.
“It is not just the authorities who need to change, it is the people too,” he said, pointing to the case of a Co Mayo farmer who received a suspended sentence after pleading guilty to seven counts of incorrect tax returns over seven years, resulting in a payment of €315,000 to the Revenue Commissioners. He was described as a “good, decent, honest-to-goodness person who worked hard” by his parish priest.
He recalled that of the 35,000 holders of non-resident accounts, no one went to jail and no bank official was prosecuted arising out of the non-payment of DIRT, and in several cases involving companies where conspiracy, bribery, false accounting and other crimes were discovered no one was prosecuted.
Yet white-collar crime was not victim-less, he said. Breaches of the health and safety laws could lead to death and injury; breaches of environmental law could lead to environmental damage affecting thousands; and mismanagement of the banks had led to company failure and job loss on a vast scale.
“In 2002 there were 59 homicides and 61 people died in the workplace. So you had a slightly greater chance of being killed in the workplace than being murdered,” he said.
Mr Prendergast said that there was an expectations gap between what people expected of the ODCE and what it could actually do. Much of company law was mundane, and involved ensuring that companies abided by the ground rules set out in the law.
The ODCE prosecuted in the District Court companies who did not comply with the law.
Serious breaches were referred to the DPP who decided whether to prosecute on indictment. This had happened only about five times in the past 10 years, he said. Yet civil disputes, even within very small companies, had to go to the High Court, he said.