Securing convictions in cases of white-collar crime is particularly difficult to achieve
IT IS difficult to overstate the scale of the damage caused by so-called white-collar crime.
If white-collar crime formed part of the backdrop to our banking collapse, then it follows that every citizen of the State is a victim of such crime by way of increased taxes, loss of national sovereignty, wide-ranging youth unemployment, restricted services and life opportunities, and so on.
Even leaving banking aside, tax evasion and the flouting of the law in such areas as the environment, health and safety, planning, competition and the running of companies, strains public resources, endangers people’s health, reduces the quality of the built environment, puts businesses at risk and rips off consumers on an ongoing basis.
Despite this, newspapers and other media tend to treat crime as something that is perpetrated by young working-class males in tracksuits. This view of crime is supported by the fact that, on most days in the criminal courts, almost all the defendants are in fact young working-class males in tracksuits, many of whom are already familiar with the insides of our crowded prisons.
The view that white-collar crime tends to go unpunished has been addressed directly by Minister for Justice Alan Shatter. Introducing the second stage of the Criminal Justice Bill (now Act) last year, he said it was his top priority as Minister that people’s faith in the principle that perpetrators of white-collar offences would pay for their crimes would be restored.
It is safe to say the jury is still out on the issue.
According to Paul Appleby, the outgoing director of corporate law enforcement, one of the key reasons white-collar crime is so difficult to prosecute is that it invariably occurs behind closed doors.
By way of contrast, such crimes as road-traffic offences and assaults, public disorder and thefts regularly have witnesses who are willing to give evidence.
“Even when there is a lot of documentary evidence involved, this is rarely sufficient to secure a prosecution where the standard of proof is beyond reasonable doubt,” according to Appleby.
“You need to have an insider who is willing to testify that a particular event occurred and that the suspect was responsible, and it is quite often difficult to get an individual to do that.”
It is because of this issue that Appleby’s office has for some time supported the introduction of comprehensive legislation to support whistleblowers. This Government is committed to introducing such a law.
The Act Shatter introduced last year includes measures that were directly informed by the experience of Appleby’s office and officers from the Garda Fraud Bureau arising from their ongoing inquiries into suspected crimes in the banking sector.
The central provision of the Act is a new power for the Garda to apply to court for an order to require a person with relevant information to produce documents, answer questions and provide information for the purposes of an investigation into relevant offences. Failure to comply with such an order is now an offence.
Section 19 of the Act obliges a person who has information on suspected offences such as theft, fraud and corruption as well as company law, banking and other financial offences to report it to the authorities. The law is understood to have led to a significant number of reports being filed to the Garda Fraud Bureau.
Whether the recent banking and related corporate scandals will lead to senior figures from the business world being brought to court and convicted over the coming years will most likely dictate whether Irish people’s jaundiced view of the State’s attitude towards white-collar crime will change.
This will be so even if, in individual cases, defendants put forward defences that are accepted by juries.
Barrister Shelley Horan, author of Corporate Crime and a lecturer on the subject at Trinity College Dublin, believes there is a need for a wholesale review of the structures that currently exist for tackling white-collar crime in Ireland, an area that she believes is highly neglected.
“White-collar crime does a lot more damage [in society] than more conventional crime,” she says.