A leniency programme to protect cartel members who expose price-fixing to the Competition Authority should be introduced, the Director of Public Prosecutions said yesterday.
Mr Jim Hamilton said at a conference that he had discussed such a programme with the authority although elements of the plan were not yet finalised.
In addition, the Attorney General told the same conference it would be "entirely self-deluding" to assume the authority could investigate criminal cartels without assistance from the Garda.
Mr Michael McDowell said the Garda would need powers of arrest, detention and interrogation if they were to successfully pursue groups who conspired to fix prices.
The director of the authority's cartel division, Mr Pat Massey, said price-fixing could cost Irish consumers about £500 million (€635 million) every year. He estimated "dead-weight" losses to the Irish economy due to cartels at £1 billion annually.
Mr McDowell - speaking in a "personal capacity" - said the principle of immunity should be limited to specific areas of the criminal code.
For example, it was not reasonable to compare the law of murder with the law of competition.
Mr Hamilton said: "I'm quite convinced of the merits of an immunity or leniency programme. I think this is the way to go."
Such a programme would have to be carefully drafted, he added.
Cartel members who exposed price-fixing schemes should be "certain" of immunity if they came forward. Yet the DPP would be concerned not to fetter his discretion to prosecute cases or not if he was obliged to offer immunity.
A possible solution here was to preserve his discretion by offering "reasonable predictability" on the question of certainty. This model was used in Canada, he said.
Asked whether an immunity programme would require legislation, Mr Hamilton said: "As long as your discretion is maintained, you probably don't need legislation."
The benefits of a leniency programme were clear, said Mr Massey. "It essentially provides strong incentives for cartel members to `shop' their accomplices as only the first party to provide information about a cartel qualifies for immunity. Such programmes represent an interesting means whereby enforcement agencies can create realworld `prisoners' dilemma' games that favour them."
Mr Massey added: "We in the authority are not kidding ourselves. We do not see such a programme as an instant magic solution. A leniency programme is not a substitute for detailed and thorough investigations. Rather it is an additional weapon, albeit an extremely effective one, in the war against cartels.
"I say potentially because such a programme is unlikely to be very effective unless firms believe that the threat of detection is real."
Access to significant financial resources was crucial, he said.
"A potentially serious problem can arise if severe resource constraints delay the systematic and timely considerations of all complaints or restrict full investigations. This will inevitably give rise to complaints of selective enforcement from those who feel that they are being unfairly singled out for attention."
Mr Massey said investigations were highly complex by nature.
In an apparent reference to critics who have claimed the authority's powers are superficial, he said it was "very naive" to suggest that it should have secured a number of criminal prosecutions by now. "Cartels are organised by and operated by individuals and companies who coolly calculate that they stand to earn substantial profits from such behaviour.
"Those who engage in cartels are not petty crooks - they are clever sophisticated business executives who have risen to senior management positions in their companies."
