The Gazette 1991

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

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