The financial crisis which we have just endured may have been the worst in our history. It had a number of causes, including questionable and probably irresponsible corporate behaviour in the private sector and poor “light touch” regulation by State authorities and agencies.
Many people wonder why our criminal and regulatory laws did not deter and prevent behaviour of a type which was likely to have (and has had) such grave consequences for all of our citizens.
Important measures have been taken, and legal and regulatory reforms have been put in place since 2010 in response to the crisis, both in Ireland and at EU level.
However, are those measures and reforms sufficient to deter and prevent such behaviour in the future? In a consultative document, called an issues paper, published earlier this week, the Law Reform Commission asks that question and whether we need further reform of our laws on corporate crime and of the enforcement powers available to our financial and economic regulators.
The paper covers 12 relevant issues and asks for responses to questions that arise from them.The following are some of those questions:
Fraud offences
Are our current fraud laws sufficient and appropriate for the problems they are intended to address? Are there some activities, especially involving corporate bodies, that are not covered by existing fraud offences but which should be?
Do we need something along the lines of US federal wire fraud offences, which apply where a person or a corporate body uses telecoms systems to plan or commit a fraud offence?
Ireland does not have this exact offence, though much of the conduct covered by the US offence appears to be criminalised by existing Irish offences such as conspiracy to defraud.
Reckless trading
Fraudulent trading is a criminal offence in Ireland: it is committed when, for instance, directors of a company incur debts that they know their company cannot repay. But what about directors or senior officers who should have known of the inability to pay but claim that they didn’t and simply “took a chance”?
Although directors and senior officers can be sued personally in the civil courts for such debts, they may not have adequate assets to compensate creditors.
In 2001 Australia made "reckless trading"a criminal offence. In 2013 the UK introduced a recklessness-based offence of "causing a bank to fail".
Reckless trading is not a crime in Ireland. Should it be? Should we introduce a criminal offence of “reckless” trading?
Corporate criminal offences
Historically our criminal laws have been based on the concept of “intent” (that is, did an individual intend to commit the crime?). That is because our criminal laws were initially intended to deal with the conduct and decisions of humans and not those of artificial legal entities such as companies or other corporate bodies.
It follows that when criminal offences are framed around human characteristics such as “intention” or “dishonesty”, it can be difficult to pinpoint a company’s responsibility, as opposed to that of a director or employee.
Although they act through human beings such as directors, managers and employees, companies are often large organisations whose actions result from the decisions of numerous persons and from particular corporate rules and policies. What tests should be applied to discover whether a criminal offence has been committed by a company or a person who works for it? When should both a company and individual persons be liable?
We have particular and general criminal laws which govern how companies and their senior directors, officers and managers can be prosecuted. Are those laws appropriate and adequate?
Regulators and their powers
Financial and economic regulators operate under legislation that gives them powers to ensure compliance with regulatory laws and to act against both corporate bodies and individuals who breach them. Of course, different economic sectors can require different approaches and “regulatory toolkits”.
In recent years, significant changes have been made and new measures introduced to improve and tighten the regulation of the providers of financial and economic services. Are these changes and measures sufficient?
Also, there are many areas of shared interest and aspects of regulation and enforcement that are common to most regulators. Among these are enforcement measures such as civil financial sanctions, negotiated compliance agreements and redress schemes. Not all regulators have access to the same “regulatory toolkits”. Should some or all of these be available to all regulators?
Are there approaches used in other countries that Ireland should adopt (for example, a law that sets out common powers of entry, search and seizure or a law providing for a common set of civil sanction and/or redress powers)?
Deferred prosecution agreements
These are agreements negotiated between prosecutors/regulators and persons or corporate bodies accused of criminal conduct. They usually provide for the suspension of a prosecution in return for an admission of wrongdoing, the payment of a fine, the return of anything unlawfully acquired and full co-operation with regulators for a stated period of time.
In the US, where these agreements are often used in relation to corporate crime, they have been criticised for not penalising senior officers and for letting corporate bodies off too lightly.
In 2013 the UK introduced a framework for this type of agreement subject to detailed codes of practice and guidance for regulators. The agreements are subject to approval by a court which must be satisfied that the terms of the agreement are fair, reasonable and proportionate.
Should Ireland consider introducing such arrangements? If so, in what circumstances and under what conditions?
The commission would greatly appreciate responses and comments from all persons or bodies interested in these important subjects on or before close of business on Wednesday, March 30th, 2016.
Written submissions can either be emailed – in whichever format is most convenient – to the commission at corporateoffences@lawreform.ie, posted to the Law Reform Commission at IPC House, 35-39 Shelbourne Road, Ballsbridge, Dublin D04 A4E0 or replied to via the in-document response boxes found within the text of the issues paper itself which can be found on the commission's website at lawreform.ie. Mr Justice John Quirke is president of the Law Reform Commission