ONE OF the distinguishing features of Irish society has been the relative immunity of white-collar criminals from successful prosecution and imprisonment. Offences have not been in short supply but the law was inadequate to deal with them. Examples of successful prosecutions in other jurisdictions for crimes that have gone unpunished here finally delivered the Criminal Justice Act, 2011.
It addresses serious financial offences in the banking, business and technology sectors involving fraud, money laundering, theft, bribery, corruption and other matters. It gives power to investigating gardaí, based on court orders, to demand the production of documents and information – information and documents that were successfully withheld in recent investigations. The Act also makes it an offence for a person to withhold information concerning a suspected crime “without reasonable excuse”.
Concerns have been raised by former attorney general Michael McDowell that the new powers may be more widely used by members of the Garda Síochána than was envisaged by legislators. Because all crimes of theft are caught by the Act, Mr McDowell has suggested that any citizen suspected of withholding information concerning relatively minor offences may be arrested and detained and that “it would be idle to hope or believe that the new offence will only be applied to serious white-collar crime”. The defence “without reasonable excuse” is too vague, he holds, and this amounts to a constitutional issue.
These are valid concerns. But they are based on questionable assumptions. The Criminal Justice Act has been drafted specifically to deal with serious white-collar crime, as is obvious from the list of relevant offences contained in its schedule. To suggest the Garda Siochána will now use these provisions to tackle all crimes involving theft and threaten citizens with jail for withholding information takes an extreme view. The manner in which the Act has been laid out would suggest the defence “reasonable excuse” for not divulging information refers directly, if not exclusively, to an earlier section. That section deals with the legal profession and “privileged legal material”. Mr McDowell has raised the prospect of new powers being widely and routinely used to threaten innocent people into becoming “informers”. To avoid such a drift towards repression the Garda Commissioner should make it clear that the Act should only be used as intended.