125 / 462
g a z e t t e
a p r i l 1991
LAWBJÍtlEF
Edited by/Eamonn
G. Hall, Solicitor.
WHITE-COLLAR CRIME
The Director of Public Prosecu-
tions, Mr. Eamonn Barnes, delivered
an imporant lecture to the Irish
Centre for Commercial Law Studies
on February 21, 1991. The Director
spoke about the adequacy or other-
wise of the Irish criminal justice
system in coping w i t h fraud,
particularly w i th large and compli-
cated cases. The Director stated
that unless Ireland adopted new
and radical ideas and concepts,
both in our laws and procedures, he
feared that the new electronically-
controlled worlds of national and
international banking, financial ser-
vices, trade, commerce, customs,
tariffs and interventions " may
rapidly become happy hunting
grounds in wh i ch any reasonably
sophisticated white-collar criminal
could roam at will, untroubled by
any perturbation that his activities
would be effectively checked or
inhibited by the Irish criminal justice
system".
LAW OF DISHONESTY
The Director of Public Prosecutions
stated that the law relating to
dishonesty essentially was con-
tained in the
Larceny Act, 1916.
Mr.
Barnes stated the present law,
t hough flawed, was adequate
enough to deal w i th the neigh-
bourhood robber and burglar. The
law cou ld cope w i t h s imp le
larcenies and, w i t h increasing
strain, the generality of other
statutory larcenies, false pretences
and embezzlements. The Director
stated that the strain approaches
breaking point, however, when we
enter the world of false accounting
and fraudulent conversion. One
generally needed a co-operative
"The Director steted that unless
Ireland adopted new and radical
ideas and concepts both in our
laws and procedures, he feared
'a happy hunting ground in
which any reasonably sophisti-
cated white-collar criminal
could roam at will
suspect
in t h o se areas, co-
operative, that is either in the
transparent nature of his fraud or in
Eamonn Barnes
his attitude towards the investiga-
tion, in order to mount a pro-
secution wh i ch holds out any
prospect of success.
The Director was of the opinion
that the fault was not all w i th the
substantive Criminal Law. The law
of Evidence and Ireland's system of
criminal investigation and pro-
cedure militated strongly against
the detection and the prosecution
of persons guilty of sophisticated
frauds. However, the Director
stated that the law itself was
clearly inadequate in 1991; the law
required root and branch reform.
The Director no t ed f r om ' t he
Eleventh Annual Report of the Law
Reform Commission
that a Dis-
cussion Paper on dishonesty was at
an advanced stage. While he would
not w i sh to trespass on the
Commission's functional area, the
Director said that we urgently
needed legislation wh i ch reformu-
lated the principal concepts of the
law of dishonesty wh i ch related to
property, ownership, services,
credit, appropriation, loss and pre-
judice, deception and dishonesty
itself. Whether such reforming
legislation would follow the lines of
the UK
Theft Acts of 1968 and
1978,
whether it would draw on
the fruits of the extensive studies
in this area over the past forty years
by law reform agencies in other
Common Law jurisdictions in North
America and the Antipodes, or
whether it would constitute some-
thing which the Director would like
to see but wh i ch may not be a
practical proposition - an entirely
Irish solution - was something on
wh i ch he had no very strong view.
Whatever f o rm the solution may
take, what was required was a
reformulation of the fundamental
concepts to wh i ch it referred so
that, as far as human ingenuity
could achieve it, there wou ld
always be a criminal offence to fit
grossly dishonest conduct. The
Director stated that this has often
not been the case, even before the
introduction of electronically-per-
formed financial transactions and
accounting.
NO CRIMINAL OFFENCE OF
FRAUD
The Director of Public Prosecutions
considered that there was no
reason why, if new dishonesty laws
were enacted, the old ones could
107