White-collar crime reporting could cause headaches for firms


OPINION:The legal tools are now in place to speed up the prosecution of white-collar crime, writes KENAN FURLONG

IT IS a familiar conundrum for many businesses: you discover one of your people has been involved in potentially fraudulent activity but should you tell the Garda? Would a carefully managed exit of the person involved suffice?

The new Criminal Justice Act 2011 aims to end this debate by criminalising failure to report information to the Garda which might be useful to them in preventing, investigating or prosecuting white-collar crime. The Act was signed by the President last week and takes effect from tomorrow. Internal investigations into potential fraud will never be the same.

Criminalising the failure to report information to the relevant authorities is not new but it is relatively rare. Modern “withholding information” offences tend to apply in limited and specific circumstances.

For example, regulated entities or those working with them may be subject to specific mandatory reporting obligations which, if breached, trigger a criminal offence. Similarly, the Offences Against the State (Amendment) Act, 1998 criminalises a failure to disclose information in relation to certain serious offences such as murder, kidnapping, and serious assault.

What is novel about the Act is that it creates a new withholding information offence which specifically applies to serious white-collar crimes relating to banking, funds, and other financial activities; company law; money laundering; theft and fraud; bribery and corruption;consumer protection; and criminal damage to property.

Everyone from the doorman to the chief executive and even the company itself has a potential exposure. The company and its directors/officers (and those purporting to act in that capacity) will be guilty of the offence where the information was withheld with their “consent or connivance” or was attributable to their “wilful neglect”.

Serious breaches will attract serious penalties which can range from an unlimited fine to five years’ imprisonment or both.

The Act is reasonably clear on what information must be reported. You do not need to know a crime has been committed; it is sufficient if you know, or believe, you have information which could assist the gardaí in preventing, investigating or prosecuting certain white-collar crimes.

Unfortunately, the Act is less clear about when this information must be reported and this has the potential to cause headaches for businesses. Information must be reported “as soon as practicable”. However, it is unclear if the information should be reported before, during or after the internal investigation into the potential fraud. Businesses may have no choice but to adopt a conservative approach to reporting potentially fraudulent activity pending further guidance on this issue.

The offence will not be committed where a party has a “reasonable excuse” for not reporting the information, and does not apply to information a person has about him or herself. It is unclear what will constitute a reasonable excuse although we can anticipate the offence will not transgress legal professional privilege.

Whistleblowers are protected. However, the Act attempts to discourage spurious reporting by making it an offence for employees to make a disclosure that they knew was false or where they were reckless as to whether it was false.

The overarching purpose of the Act is to accelerate the investigation and prosecution of certain white-collar crime. The Act also makes important practical reforms to areas such as detention periods, the Garda’s power to obtain and manage documents/information and the admissibility of such documents/information.

These new provisions follow hot on the heels of Alan Shatter’s commencement into law from August 1st of section 57 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

This section, which lay dormant on our statute books since 2001, is aimed at ensuring that those accused of certain white-collar crimes do not escape conviction because the jury cannot understand the complex financial information underpinning the case. It allows a judge to order that juries be provided with simplified financial information and expert guidance regarding company accounts, financial transactions and other complex financial documents.

Juries can also be provided with transcripts of both the evidence/arguments heard during the trial and the judge’s instructions to the jury as well as any charts, diagrams or graphics produced.

These practical reforms will have a significant impact on the prosecution of white-collar crime.

However, it is the withholding information offence in the 2011 Act which goes to the heart of Irish corporate culture and which will be discussed in boardrooms across the State.

It is true that there have not been mass prosecutions of similar offences in the past. However, given the current appetite for white-collar convictions, who is going to take that chance?

Kenan Furlong is a partner in A & L Goodbody – corporate criminal offences unit

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