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g a z e t t e
a p r i l 1991
RESPONSES TO QUESTIONS
While not advocating a total
abolition of the right to silence or
the c r ea t i on, of an absolute
obligation to self-incriminate, the
Director considered it odd that a
person, believed to be involved in a
minor road traffic offence, could be
obliged under pain of imprisonment
to admit that he was driving the
vehicle at the relevant time, thereby
supplying the missing link in the
chain of evidence against him, but
a person suspected of swindling
scores of persons of millions of
pounds was not obliged to say
whether or not he made a particular
entry in an account or caused a
particular withdrawal to be made.
The rule against self-incrimination
did not prevent a suspect having to
provide what was often an ex-
tremely incriminating sample of his
blood or urine under the Road
Traffic Code, again under pain of
severe penalties. Other provisions
enable fingerprints and swabs to be
taken which may well result in a
conviction for serious crime. The
provisions of section 20 of the
Finance Act, 1936
have, for over
half a century, been a most
valuable weapon in the prosecution
of customs offences. The Director
saw no logical reason why the
responses to questions properly
asked in the course of a fraud
investigation by a person duly
authorised to do so by an Act of the
Oireachtas should not be ad-
missible in evidence, if we were
really serious about the investiga-
tion of serious fraud.
COMBINED INVESTIGATIVE
AND PROSECUTIONAL FACILITY
The Director raised the question
whether or not Ireland should have
a combined investigative and pro-
secutorial facility akin to the UK
Serious Fraud Office. He knew that
that the UK Office operated
extremely well and efficiently. He
meant no reflection on that Office
when he said that on balance, for
Ireland, he considered that, in this
jurisdiction at least, the separation
of the investigative and the
prosecutorial functions and the
preservation of the independence
of each from each other were of
the very great importance indeed.
The Director considered that the
time was fast approaching, if
indeed it had not already arrived,
when a section dealing exclusively
with fraud would have to be
established in his own Office in
which specialised in-house skills in
areas such as banking, account-
ancy and computing were available.
It would probably be sufficient for
the present if the legal staff in such
a section underwent a period of
training in those disciplines but he
suspected that the employment of
fully qualified persons may become
necessary sooner rather than later.
At present with existing staffing
levels it was not feasible for a Legal
Assistant dealing with a complex
fraud case to give it the exclusive
attention it deserved and indeed he
would usually have murder, rape
and robbery files demanding his
urgent attention at the same
time.
LAWOF EVIDENCE: TERRITORIAL
JURISDICTION;
CRIMINAL
PROCEDURE
Finally, the Director made brief
references to the Law of Evidence,
problems of territorial jurisdiction,
and criminal procedure. In relation
to the Law of Evidence he stated
that the problems identified in
Myers
case had been greatly
exacerbated by the advent of the
micro chip, the micro fiche and the
magnetic tape. Draft legislation in
this difficult area was, he under-
stood, at an advanced stage.
Even more difficult problems of
a jurisdictional nature arose from
the increasingly international
character of fraudulent financial
and commercial transactions. In
relation to criminal procedure, he
was greatly attracted by the
provisions of section 4 of the UK
Criminal Justice Act 1987.
The
Director considered that in relation
to preliminary
examinations
generally, there was an un-
answerable case for their abolition
in the case of serious and complex
fraud.
The Director of Public Pro-
secutions concluded by stating that
the investigation and prosecu-
tion of serious fraud cases in
Ireland was fraught with serious
difficulty.
•
TURKS AND CAICOS
ISLANDS AND
THE ISLE OF MAN
Samuel McCleery
Attorney - at - Law and Solicitor of PO Box
127 in Grand Turk.Turks and Caicos Islands,
British West Indies and at 1 Castle Street,
Castletown, Isle of Man will be pleased to
accept instructions generally from Irish
Solicitors in the formation and administration
of Exempt Turks and Caicos Island
Companies and Non - Resident Isle of Man
Companies as well as Trust Administration
G. T Office:-
Tel: 809 946 2818
Fax: 809 946 2819
I.O.M.Office:-
Tel: 0624 822210
Telex : 628285 Samdan G
Fax: 0624 823799
YOUR WILL "
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For donations and furtharparticulars contact:
Miriam McNally
Irish Wheelchair Association
Aras Chuchulain, Blackheath Drive,
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IRISH
WHEELCHAIR
ASSOCIATION
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109