126 / 462
g a z e t t e
a p r i l 1991
not be retained for five or ten years
as a fall-back position, should the
new law spring serious leaks in
practice. The Director considered
that it may come as a surprise to
many that there was in fact no
criminal offence of fraud. There
was, however, the offence of con-
spiracy to defraud which, on the
authorities, was notably wide in its
sweep. The scope of the offence
was so wide as to cause periodic
misgivings among lawyers and law
r e f o rme rs but it su r v i ved all
sugges t i ons of abolition. The
reason was that it was necessary.
Situations arose in wh i ch the
prosecution either could not isolate,
or could not prove, individual
offences committed in a fraudulent
course of conduct, even though
that course of conduct was clearly
designed to defraud a person or
persons or the public at large. It
was obviously a prosecutorial
weapon to be used w i th extreme
cau t i on and restraint and, of
course, if substantive offences
were commi t t ed and provable, any
prosecution would normally relate
specifically to them. Mr. Barnes
stated that he and many others
found it odd and illogical that con-
duct, howsoever dishonest, could
be an indictable offence carrying
unlimited imprisonment if com-
m i t t ed by t w o pe r sons, but
criminally not unlawful if com-
mi t t ed by one. Conspiracy to
defraud had been a common law
offence for a very long time and he
was not aware of any case in which
the authorities in this jurisdiction
had misused or abused their
powers in this respect. He con-
sidered that it should not be beyond
one's ingenuity to conceive and
draft a general offence of fraud
designed to co-exist w i th more
specific offences of dishonesty
with, -perhaps, the possible safe-
guard, wh i ch does not at present
exist in the case of conspiracy to
defraud, that a charge could not be
"[The Director] considered that it
should not be beyond one's
ingenuity to conceive and draft a
general offence of fraud designed
to co-exist with more specific
offences of dishonesty
preferred except by or w i th the
consent of the Director of Public
Prosecutions.
Criminal Investigation
The Director stated that the t wo
most difficult types of criminal
offence to investigate and pro-
secute were those involving fraud
and sex. They were also among the
offences wh i ch gave rise to the
greatest public disquiet, parti-
cularly, when a prosecution was
deemed inappropriate or impos-
sible. The Director considered these
offences were suitable for and
frequently required some kind of
inquisitorial approach. He believed
t h a t t he a p p o i n t me nt of an
examining magistrate invested w i th
t he app r op r i a te powe rs and
working w i th and through the
Garda Siochana wou ld greatly
enhance t he chances of t he
successful investigation of serious
and complex fraud and thereby
reduce public disquiet regarding
both the prevalence of the offence
and the immunity of offenders.
Such an investigation conducted or
directed by a member of the
j ud i c i a ry exercising ex t ens i ve
investigative powers wou ld be
conducted entirely separately and
independently of the ultimate pro-
secuting authority, thereby pre-
serving what he considered to be
the extremely important separation
of the investigative and prosecu-
torial f unc t i ons. The Director
suggested that should the idea of
an investigating magistrate prove to
be unacceptable, it would, in his
view, be necessary to invest the
investigative authority of the State,
the Garda Siochana, w i th much
more extensive powers than they
now possessed if serious fraud was
to be confronted in a serious
manner. Some of the required
powers were obvious, such as the
power presumably on application to
a court to enter, search and seize
and would not in any way be
unusual or unprecendented. Other
powers wh i ch the Director would
regard as absolutely necessary and
the absence of wh i ch in the past
had seriously hampered fraud
"[The Director] believed that the
appointment of an examining
magistrate invested with the
appropriate powers . . . would
greatly enhance the chances of
the successful investigation of
serious and complex fraud
i nves t i ga t i ons, wo u ld b r oad ly
correspond w i th those conferred
on the Director of the Serious Fraud
Office by section 2 of the UK
Criminal Justice Act of 1987.
Doyle Court Reporters
Principal:
Áine O'Farrell
Court and Conference Verbatim Reporting
Specialists in Overnight Transcription
2, Arran Quay, Dublin 7. Tel: 722833 or 862097
(After Hours)
Tj^ceiUnce in deporting since 1954
108