White Collar Crime: Proposed modernisation of the Irish criminal justice system – will the promised efficiencies be realised?

Reform of the Irish criminal justice system, through the actions outlined in the Government's Action Plan to tackle White Collar Crime and the Justice Plan 2021, has gathered pace in recent weeks with the announcement two significant changes to the investigation and prosecution of criminal offences. 

On 24 May 2021, the Criminal Procedure Act, 2021 (the Act) was signed into law and is currently awaiting commencement. The main purpose of the Act is to provide greater efficiency to the criminal trial process through the introduction of preliminary-trial hearings for the first time in Ireland. It also deals with the provision of documents and information to juries in all trials on indictment. 

In addition, on 14 June 2021, the Minister for Justice, Heather Humphreys TD, published the General Scheme of Garda Síochána (Powers) Bill (the Bill) following approval by Government. The Bill aims to introduce a clear and transparent statutory basis for the existing police powers of search, arrest and detention, supported by a statutory code.  

In this insight, we take a look at these developments, and whether their promise of a more effective and efficient criminal justice system, particularly in the context of white collar crime, will be realised. 

Preliminary-trial hearings 

Successive government reports, dating back to the 2000's, have called for the enactment of preliminary-trial hearings as a means by which both administrative matters and complex issues around the admissibility of evidence, can be dealt with before a trial jury is empanelled. 

The momentum for reform waivered for some years, with the Criminal Justice Bill only recently making its way onto the priority list of legislation, spurred on by the Hamilton Report. Hamilton recommended that its enactment be expedited as preliminary-trial hearings had the "…potential to significantly enhance the ability of the relevant prosecutorial bodies to effectively prosecute economic crimes and corruption…" (to read more about the recommendations contained in the Hamilton Report see here our article "Publication of the Hamilton Report: 25 recommendations for economic crime reform.")

Turning to the Act, it provides that preliminary-trial hearings may be sought in any trial where an accused is charged with an indictable offence and must be ordered where sought in respect of a 'relevant offence' (being an offence on foot of which, a person of full capacity, and not previously convicted, may be sentenced to either imprisonment for life, or a maximum term of 10 years or more).

These types of hearings may be held at any time before a jury is sworn in (or in the case of the Special Criminal Court, before the trial commences) and may relate to a wide range of issues.  For example, the prosecution or the defence may bring an application seeking an order that:

• Facilitates the practical running of the trial either through the use of technological equipment or otherwise (i.e. orders can be made for the receipt of evidence through TV link, intermediaries, behind screens etc.) 
• Ensures that the trial is ready to proceed when the jury is sworn in, such as directing that any outstanding disclosure be delivered, or any necessary amendments to the indictment are made. 
• Facilitates a lengthy trial by the swearing in of additional jurors at the outset of the trial so as to ensure a sufficient number of jurors is maintained throughout the trial. 
• Deals with the admissibility of evidence at the trial of the action. 

It is worth noting that any orders which are made at the preliminary-trial hearing are binding as though they were made at the trial of the offence and no right of appeal exists until after the trial has concluded. However, a trial court may vary or discharge an order where there has been a "material change of circumstances". 

The only exception to this is where an order is made that evidence be excluded - this type of order may be appealed by the prosecution before the trial. The Act is clear that no trial shall take place until that appeal is determined or withdrawn. 

In terms of publishing or broadcasting the preliminary-trial hearing, this is limited to a statement of fact that it is being conducted. Where an order is made, its contents may be reported on if the court is satisfied that it is not contrary to the interests of justice. Any publication or broadcast which is in breach of the Act, or an order of the court, will be punishable in an equivalent manner to the offence of contempt of court. 

Provision of Information to Juries 

In the Law Reform Commission (the LRC) Report on Jury Service, published in 2013, it was recommended that juries should be provided with access to information and documents to assist in their decision making in all trials on indictment. At that time, only certain Irish legislation provided for the giving of documentation to juries in particular trials (e.g. fraud trials). 

In line with the LRC recommendation, the Act provides that in all trials on indictment, a trial judge may order that copies of certain documents (e.g. any document admitted in evidence in the trial; any charts, diagrams, graphics, schedules or agreed summaries of evidence; transcripts of opening or closing speeches by counsel; transcripts of the judge's charge) be provided to the jury in any form that is considered appropriate. 

Publication of the General Scheme of Garda Síochána (Powers) Bill 

The publication of the Bill comes on foot of a recommendation made by the Commission on Future Policing in Ireland and as part of the Justice Plan 2021. It is intended to consolidate the existing powers of search, arrest and detention which are currently spread across the common law, legislation, constitutional and EU law. 

The new measures included in the Bill, which are most likely to impact on the investigation of white collar crime offences, include: 

• Introducing a single power of arrest which will also see the scope of Garda arrest powers increase. 
• Putting the Garda caution on a statutory footing and the requirement for a written contemporaneous note of a Garda interview will be removed in cases where it can be recorded by other means. 
• Putting the right of an accused to have a lawyer present at a Garda interview on a statutory footing. 
• Introducing a power for An Garda Síochána, the Competition and Consumer Protection Commission and the Office of the Director of Corporate Enforcement to require a person to provide passwords for access to electronic devices when executing a search warrant. 
• Longer detention periods for the investigation of multiple offences being investigated together, for a maximum of up to 48 hours.

Where to next? 

While the Act has been passed into law, it has not yet been commenced. Engagement is currently ongoing between the Department of Justice and the Court Services to put in place the necessary practices, procedures and measures to facilitate the conduct of preliminary-trial hearings. Once this engagement has been completed, it is expected that the Act will be commenced. 

The Act marks a significant step forward in the modernisation of Ireland's criminal trial process. It is hoped that the lengthy delays experienced, especially in the prosecutions which flowed from the 2008 financial crisis, may be avoided in future through the use of preliminary-trial hearings. However, it remains to be seen whether the efficiencies which the Act endeavours to achieve, will be realised. 

As for the Bill, it has been sent to the Oireachtas Joint Committee on Justice for pre-legislative scrutiny. It is likely to go through some adjustments as part of the legislative process, and we expect that significant attention will be paid to the provisions regarding the disclosure of passwords. The introduction of such a reform would significantly ease the current difficulties being experienced by law enforcement and regulators in accessing potentially relevant data on electronic devices. However, this objective must be carefully balanced against the rights of individuals under investigation.  

For more information on this topic, please contact Joe Kelly, Partner, Katie O'Connor, Partner, Mairead O'Brien, Associate or any member of the White Collar Crime team.

Date published: 16 June 2021