Statements on the Office of the Director of Corporate Enforcement

Issued 25 May 2017

Anyone charged with investigating serious crime has two basic obligations.

The first is to assemble all the information needed to persuade a jury that the accused person has committed that crime.

The second obligation is to maintain the integrity of that information and of the information-gathering process.

To acquire full information, to acquire it fairly and to preserve it intact and uncorrupted.

We know very well in this House that the Garda Síochána learned this lesson to their cost, eventually, after a long succession of cases when prosecutions were thrown out because the evidence could not be relied upon.

Now we discover that another major body charged with the investigation of serious crime seems to have learned nothing at all about its own basic obligations to the law.

We all know that the defendant in a criminal case has rights.

But it is important to remember that serious crimes in this country are prosecuted in the name of the People.

And the People also have rights.

Mr Sean Fitzpatrick has not been convicted of any offence and he is entitled to the benefit of his directed acquittal.

That will not prevent me, and I believe most right thinking people, from continuing to believe that company laws were breached in an egregious manner in the management of Anglo Irish Bank.

That was the case made on the People’s behalf and it was the case we expected Mr Fitzpatrick and others would have to answer.

Those whose duty it was to prosecute that case in the People’s name and on their behalf owed a duty to the People to discharge their functions professionally and competently.

But this train-wreck of a case seems to show staggering incompetence in going about the People’s business.

And we as public representatives are not just entitled but obliged to find out how and why this happened.

I have heard Niamh Brennan, a distinguished author and academic with expertise in this area, caution that we should not throw out the baby with the bathwater.

Fair enough.

I am sure the ODCE has done good work over the years.

Indeed, for most of the last century, our company law was the best example of the old truism that it is not new or better laws we need: we should first set about enforcing our existing laws.

The level of noncompliance with even the basics of company law, during the decades when enforcement rested in the old Department of Industry and Commerce, was staggering when we look back on it now. It was a truly a lawless environment.

And compliance with basic rules was radically improved when the ODCE took over.

But it is one thing to invest in computers and efficiencies, and to trigger enforcement proceedings when the software throws up non-compliance with a statutory deadline.

It is another thing to invest in the professional expertise to set about a major criminal investigation.

An investigation that does not stumble across the evidence, contaminating and destroying the evidential value of everything it touches.

At best, the excuse offered seems to be that the ODCE may have had all the company law and accountancy expertise it needed but it had no expertise in criminal law.

If that is so, then it had no business in preparing a criminal prosecution.

There is a wider question here.

Our regulatory landscape has many bodies, independent of Government Departments, that have power to prosecute summary offences in their own name and power to prepare serious prosecutions for the DPP.

Is there any risk that the omnishambles revealed here could be repeated in any other of these bodies, such as the HAS, for example?

Should the DPP’s Office not have some oversight over these independent prosecutors, setting out guidelines and protocols for the investigation of serious crime?

I believe the inevitable review that will be announced must include a section that audits the competences and capacities of all our regulators that investigate and prosecute the criminal law.

I repeat my earlier statement that I respect Mt Fitzpatrick’s directed acquittal.

But I do not believe that outcome should prevent a full examination as to how this happened and why.

There are very good reasons why the prosecution of crime is at arms’ length from Government.

I respect that independence.

But independence cannot mean unaccountability.

Even the DPP herself is accountable to a statutory committee, which can inquire into her conduct and the performance of the functions of her office.

At this time, in this State, in particular, we cannot abandon our insistence that even those independent bodies charged with enforcing the law must be seen to comply with the law – and must be held to account for actions that fall below acceptable standards.

My colleague Alan Kelly has called for an immediate independent investigation into the workings of the ODCE.

That is urgently necessary, and I hope you will agree to it today.

Once this investigation has completed a review of this body, it should be tasked with repeating the exercise for any other body charged with enforcement of the law.

This could include, for example, the Health and Safety Authority, ComReg, the Central Bank and others.

I hope the Minister will have a meaningful engagement with all parties prior to finalising her approach.