The Gazette 1992

GAZETTE

w

JUNE 1992

N Prosecuting Fraud

The prosecution of serious fraud in this country seems to pose particular difficulties for the Garda and prosecuting authorities. Various reasons have been advanced for this, including the current state of the criminal law, which makes it difficult in some cases to obtain the necessary proofs to sustain prosecutions in court especially where persons have been in positions of trust and have had access to and control over funds. Questions have also been raised about whether the Garda authorities have available to them the requisite skills to investigate complicated areas of commercial activity in the corporate sphere often involving complex transactions the understanding of which would test the skills of specialists in the field. office to deal with serious fraud. This was put under the direction of a top-notch lawyer, Ms. Barbara Mills QC, who is now the Director of Public Prosecutions. That office is staffed by specialists, including lawyers and accountants, who are experts in company law and financial matters, including information technology. It works under the general aegis of the office of the Director of Public Prosecutions. The former Thoiseach, Mr. Charles Haughey, TD, mooted the idea of establishing a similar office here some time ago. This idea did not, apparently, find favour with some of the Garda representative bodies and seems not to have been pursued. The Director of Public Prosecutions has also expressed strong views on the need for action in this area. He favours changes which would include a move away from the adversarial system in our courts to an inquisitorial-type approach. Recently, the Minister for Justice announced the establishment of a working party to examine the issues involved and to In England, the authorities addressed this matter by establishing a special

bring forward recommendations. Side by side with this development, the Law Reform Commission are currently working on the modernisation of the law of dishonesty and they have published a very detailed and comprehensive working paper. We would say that this is an area that requires serious and urgent attention and it is to be hoped that, through a combination of reform of the law and a new approach to the investigation of fraud - involving the establishment of a special unit staffed with the requisite skills, whether located in the Garda or directly under the DPP - the prosecution of fraud, and white collar crime generally, will be significantly improved. The Law Society has made it clear that, in relation to its own role of policing the solicitors' profession, there have been serious problems in ensuring that solicitors who misappropriate clients' funds are brought to book in the criminal courts. The Society believes that there is an urgent need to create new criminal offences which will allow prosecutions, in appropriate cases, to be taken more easily. There are difficulties in sustaining prosecutions for larceny or embezzlement which are the main criminal offences applicable in this area. New offences, which will address the realities of the day-to- day practice of solicitors, in particular the handling by solicitors of clients' funds, are needed. The Law Society has urged the Government to create new offences in the Solicitors (Amendment) Bill, and it is to be hoped that the Government will accede to this request and bring forward amendments at the committee stage to achieve this.

to solicitors who betray the trust placed in them by the community. Criminal sanctions are entirely appropriate because of the seriousness of these offences and also because of the need to provide deterrence and to bring home to the public at large that the profession itself is determined to take every step open to it to rid the profession of miscreants of this kind. Dishonesty in the profession in recent times has been a matter of some concern and although the incidence of individual wrongdoing is small and the vast majority of solicitors do not offend in this regard, from recent statements made by the President of the Society, (See also page 171) it is clear that the Society is determined to tackle this problem in a resolute way. The public, of course, do not suffer when a solicitor offends in this way because of the availability of compensation from the fund maintained by the Society. We believe that reform of our laws and procedures in relation to the prosecution of fraud would be a step forward in this regard. • ROSNEY PROPERTY MANAGEMENT PARTNERSHIP Commercial property management Residential property management Short term/self catering residential property management Emergency service management Colour design, redecoration & furnishing No. 1 Westland Square, Dublin 2 Tel: 01-779199 Fax: 01-779355 TURKS AND CAICOS ISLANDS AND THE ISLE OF MAN Samuel McCleery Atorney - at - Law and Solictor of PO Box 127toGrand Twk.Turka and Cdooa Wanda, Brltoh Waal Indtoa aid at 1 Caala Staat. Cartatown, lata ol Man wtH ba plaaaad to acoapltoatucdonaganaraly tram kMi Soddtoa Intoato- rn ation and admlnlatratlon ol Exampt Turka and Caicoa Ialand Companlaa and Non • Raaidanl lala ol Man Compantoa aa wal aa Truat Admtolakakon OT Office:- Tot: 800 046 2818 Fa*: BOO »4« 2819 I.OMOffíce:- W: 0624 822210 Total: 628285 Samdan Q Fa*: 0624 823788

It is clearly right that the sanction of the criminal law should be applied

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