The Gazette 1992

GAZETTE

Prosecuting Fraud

JUNE 1992

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.

In England, the authorities addressed

this matter by establishing a special

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

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.

It is clearly right that the sanction of

the criminal law should be applied

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.

•

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