A REGIME of serious financial regulation must include the ability to prosecute those who infringe the regulatory regime, according to the Director of Public Prosecutions. This will give rise to new challenges for the criminal justice system, he said.
DPP James Hamilton said there were no cases pending at the moment which he had difficulty in prosecuting, but he said we must be prepared for the emergence of cases in the future which could result in very long trials involving very complex evidence. This required putting in place measure that could address these issues.
“With a very serious system of case management many of the problems could be addressed,” he said. “Pre-trial hearings would help. This was discussed in the Fennelly report but nothing was done about it.”
He also suggested changes in the system of trial by jury, which might include a panel of judges hearing complex financial cases, or having a panel of people with specialist knowledge from which juries could be drawn. Both of these would require a constitutional amendment, he said, though he was “not advocating anything”.
“A three-judge court would give you the opportunity to put in a judge with a commercial background, as well as one with a criminal law background. You would have to make an application to the court to refer a case to this court, on the grounds that a judge could not reasonably be expected to charge a jury, summarising the evidence. This might arise where there were very complex transactions with very complex financial instruments. It could be extremely difficult to explain that they were fraud.”
This was not the only possible option, he said. “There is also a system in Germany of lay judges, who sit with professional judges. They decide on matters of fact, and the professional judges decide on matters of law. Or you could have a panel of retired people who are still active and who would have specialised knowledge.
“I am not suggesting this with any degree of enthusiasm,” he stressed. However, he said there should be a public discussion on the problems that could arise, and had already arisen in the UK when such trials took place. “If we wait until a problem arises it will be too late.” He said he would be discussing this with the Attorney General, Paul Gallagher.
He said there would be public pressure on his office to prosecute arising from the behaviour of some bankers. But he warned that if the Financial Regulator had approved transactions it would be very difficult to maintain the view they were criminal.
He said he has to await the outcome of the investigation being conducted by the office of the Director of Corporate Enforcement and the Garda.
Referring to remarks from Fr Peter McVerry contrasting the number of prosecutions for tax evasion with those for social welfare fraud, where the amount of money involved was far less but there were more prosecutions, he said: “If the DPP does not get a file we have no involvement.”
This contrasts with the system in the rest of Europe and the US, where there is closer liaison between investigation and prosecution authorities, he said.
Referring to the need for a whistleblowers’ charter, he said that one advantage of a single charter was that it would be more widely known than a series of measures in a number of different pieces of the legislation, which is the policy favoured by Government.
He said the existing measures made no reference to whistle blowing in the Civil Service. This was meant to be included in the Freedom of Information Act, but was taken out on the basis that there would be a separate Bill, which never appeared.