THE RELATIONSHIP between the Director of Public Prosecutions and various regulatory bodies should be reassessed in order to enforce more robust regulation, the annual conference of prosecutors heard at the weekend.
Barrister Remy Farrell told the conference that the present system of prosecution of regulatory offences, including those in the financial sector, by the DPP restricts the degree of regulation that can be brought to bear by a given regulator.
He suggested that regulators be given a greater role in the prosecutions of offences on indictment. At the moment regulators can only prosecute in the District Court.
Penalties are relatively low, and do not act as a meaningful deterrent, he said.
At the moment only the DPP can bring prosecutions on indictment, and this has the result of de-incentivising the use of prosecution as a regulatory tool by prosecutors.
The public prosecutor’s job is to prosecute all crimes brought to his attention where there is sufficient evidence to do so, he pointed out.
Regulators perform a host of other functions, including that of investigating offences, and prosecute on a selective basis.
They are interested in influencing future conduct as well as enforcing rules in relation to past behaviour, he said.
Regulators also have to have a high degree of expertise in a given area, while the public prosecutor principally has to exercise legal and forensic expertise.
If a District Court judge refuses jurisdiction of a prosecution for a regulatory offence, and it has to be handed over to the DPP, this leads to a duplication of resources and to the regulator taking a back seat in the prosecution, despite the highly specialised nature of the evidence, Mr Farrell said.
Regulatory prosecutors also have an over-reliance on the Garda Síochána, who have a number of powers that arise only following arrest, and non-gardaí take little or no part in interviews, limiting the expertise that was brought to bear on the investigation.
“Bankers should be questioned by bankers and accountants by accountants,” he said.
The costs of the failure to regulate the financial sector were staggering, with €2.6 billion set aside for the legal fees associated with Nama over the next 10 years.
That represented €250 million a year, more than six times the entire annual budget of the prosecution service, he pointed out.
There was a big difference between the amount of money being spent on clearing up the mess and the amount being spent on ensuring it never happened again.
James Hamilton, the Director of Public Prosecutions, said he agreed with most of Mr Farrell’s analysis of the problem, but not with the solution.
There were many regulatory bodies in the State, including all the local authorities, who had enforcement powers in relation to planning, he said.
Most of these bodies did not have any expertise in relation to prosecutions on indictment and there would be problems in maintaining consistency in prosecutions.
There would also be a problem of resourcing all the regulators so that they could prosecute. As it was, they did not have enough resources for investigations.