The Gazette 1991

g a z e t t e

a p r i l 1991

his attitude towards the investiga- tion, in order to mount a pro- secution wh i ch holds out any prospect of success. The Director was of the opinion that the fault was not all w i th the substantive Criminal Law. The law of Evidence and Ireland's system of criminal investigation and pro- cedure militated strongly against the detection and the prosecution of persons guilty of sophisticated frauds. However, the Director stated that the law itself was clearly inadequate in 1991; the law required root and branch reform. The Director no t ed f r om ' t he Eleventh Annual Report of the Law Reform Commission that a Dis- cussion Paper on dishonesty was at an advanced stage. While he would not w i sh to trespass on the Commission's functional area, the Director said that we urgently needed legislation wh i ch reformu- lated the principal concepts of the law of dishonesty wh i ch related to property, ownership, services, credit, appropriation, loss and pre- judice, deception and dishonesty itself. Whether such reforming legislation would follow the lines of the UK Theft Acts of 1968 and 1978, whether it would draw on the fruits of the extensive studies in this area over the past forty years by law reform agencies in other Common Law jurisdictions in North America and the Antipodes, or whether it would constitute some- thing which the Director would like to see but wh i ch may not be a practical proposition - an entirely Irish solution - was something on wh i ch he had no very strong view. Whatever f o rm the solution may take, what was required was a reformulation of the fundamental concepts to wh i ch it referred so that, as far as human ingenuity could achieve it, there wou ld always be a criminal offence to fit grossly dishonest conduct. The Director stated that this has often not been the case, even before the introduction of electronically-per- formed financial transactions and accounting. NO CRIMINAL OFFENCE OF FRAUD The Director of Public Prosecutions considered that there was no reason why, if new dishonesty laws were enacted, the old ones could 107

LAWBJÍtlEF Edited by/Eamonn G. Hall, Solicitor.

WHITE-COLLAR CRIME The Director of Public Prosecu- tions, Mr. Eamonn Barnes, delivered an imporant lecture to the Irish Centre for Commercial Law Studies on February 21, 1991. The Director spoke about the adequacy or other- wise of the Irish criminal justice system in coping w i t h fraud, particularly w i th large and compli- cated cases. The Director stated that unless Ireland adopted new and radical ideas and concepts, both in our laws and procedures, he feared that the new electronically- controlled worlds of national and international banking, financial ser- vices, trade, commerce, customs, tariffs and interventions " may rapidly become happy hunting grounds in wh i ch any reasonably sophisticated white-collar criminal could roam at will, untroubled by any perturbation that his activities would be effectively checked or inhibited by the Irish criminal justice system". LAW OF DISHONESTY The Director of Public Prosecutions stated that the law relating to dishonesty essentially was con- tained in the Larceny Act, 1916. Mr. Barnes stated the present law, t hough flawed, was adequate enough to deal w i th the neigh- bourhood robber and burglar. The law cou ld cope w i t h s imp le larcenies and, w i t h increasing strain, the generality of other statutory larcenies, false pretences

and embezzlements. The Director stated that the strain approaches breaking point, however, when we enter the world of false accounting and fraudulent conversion. One generally needed a co-operative "The Director steted that unless Ireland adopted new and radical ideas and concepts both in our laws and procedures, he feared 'a happy hunting ground in which any reasonably sophisti- cated white-collar criminal could roam at will suspect in t h o se areas, co- operative, that is either in the transparent nature of his fraud or in

Eamonn Barnes