Business Crime 2019

Author:Ms Claire McLoughlin and Karen Reynolds
Profession:Matheson
 
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1 GENERAL CRIMINAL LAW ENFORCEMENT

1.1 What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?

Under Irish law, offences are divided between summary (minor) offences and indictable (serious) offences. In general, regulatory bodies are authorised to prosecute summary offences along with the Garda Siochána (the Irish police) and the Director of Public Prosecutions (the "DPP"). However, the DPP has the sole authority to prosecute offences on indictment (except for a limited category of offences still prosecuted at the suit of the Attorney General). In addition, there are a number of authorities that prosecute business crimes in Ireland on a summary basis. These include: the Office of the Director of Corporate Enforcement (the "ODCE"); the Criminal Assets Bureau ("CAB"); the Office of the Revenue Commissioners (the "Revenue Commissioners"); the Competition and Consumer Protection Commission (the "CCPC"); and the Office of the Data Protection Commission (the "ODPC"). In relation to indictable offences, the relevant authority prepares a file and submits it to the DPP for consideration; it is then solely at the discretion of the DPP as to whether a case will be taken in respect of a suspected offence.

1.2 If there is more than one set of enforcement agencies, how are decisions made regarding the body which will investigate and prosecute a matter?

As mentioned above, only the DPP can prosecute offences on indictment. However, in relation to summary offences, offences are primarily prosecuted by the Irish police or, if there is a specific statutory provision, by the relevant authority (see question 1.3 below).

1.3 Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?

Some authorities, such as those mentioned above, are empowered to take civil or administrative action against business crime. In particular:

the CCPC is empowered to take civil proceedings to enforce breaches of competition law involving anti-competitive agreements and abuses of dominant positions, where the public interest does not require criminal prosecution; the Revenue Commissioners can take civil enforcement action in relation to revenue offences and compel compliance with revenue law through insolvency and restitution proceedings; and by bringing criminal proceedings for breaches of the Companies Act 2014, the ODCE brings civil proceedings for the restriction and disqualification of directors, and initiates fact-finding company investigations. In addition, the Central Bank of Ireland (the "Central Bank") can impose civil and administrative penalties for breaches of banking regulations. For instance, it can impose on a person or entity: a private/public caution or reprimand; a direction to pay a penalty not exceeding €10 million or 10% of turnover, whichever is the greater or up to €1 million on an individual; and/or a disqualification that prohibits individuals from being involved in any regulated financial service provider for a specified period.

1.4 Have there been any major business crime cases in your jurisdiction in the past year?

In June 2018, former Anglo Irish Bank chief executive David Drumm was sentenced to six years imprisonment for his role in a €7.2 billion fraud perpetrated at the peak of the banking crisis in 2008, in one of the most prominent business crime cases in Ireland to date.

Mr. Drumm is the most senior employee of Anglo Irish Bank to be convicted and was found guilty of conspiracy to defraud and false accounting over deposits circulating between Anglo Irish Bank and Irish Life & Permanent that "dishonestly" created the impression that Anglo Irish Bank's deposits were €7.2 billion larger than they actually were.

2 ORGANISATION OF THE COURTS

2.1 How are the criminal courts in your jurisdiction structured? Are there specialised criminal courts for particular crimes?

Offences which are tried summarily are heard before a judge in the District Court (the lowest court). Appeals from the District Court lie to the Circuit Court. Offences tried on indictment are heard before the Circuit Court and the Central Criminal Court (the High Court exercising its criminal jurisdiction), and trials in these courts are heard by a judge and jury. While the Central Criminal Court has full and original jurisdiction to hear all criminal cases, in practice, only those cases which are outside the jurisdiction of the Circuit Court will be brought before the Central Criminal Court at first instance. Appeals from both of these courts lie with the Court of Appeal. Appeals against decisions of the Court of Appeal will be heard by the Supreme Court if the Supreme Court is satisfied that the decision involves a matter of general public importance or, in the interest of justice, it is necessary that there be an appeal to the Supreme Court. The only Criminal Court dedicated to particular crimes is the Special Criminal Court, which deals with terrorism and organised crime.

2.2 Is there a right to a jury in business crime trials?

The Irish Constitution provides that "no person shall be tried on any criminal charge without a jury", save in specified circumstances. One of these circumstances is in relation to a minor offence which is being prosecuted summarily. No distinction is made for business crimes.

3 PARTICULAR STATUTES AND CRIMES

3.1 Please describe any statutes that are commonly used in your jurisdiction to prosecute business crimes, including the elements of the crimes and the requisite mental state of the accused:

Securities fraud In accordance with the Prospectus (Directive 2003/71/EC) Regulations 2005 (the "Prospectus Regulations"), a prospectus must be published in order to offer securities for sale to the public in a lawful manner.

The Companies Act 2014 provides...

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