The absence of a mechanism to hold pre-trial hearings has long been an impediment to the efficient and effective prosecution of complex crime, including economic and white-collar crime. The introduction of such was first recommended as far back as 2003, in the nearly-two-decades-old Report on The Criminal Jurisdiction of the Courts chaired by Mr Justice Fennelly. Subsequent experience of prosecutions beset with costly delays and eleventh-hour trial collapses has shone a light on the inadequacy of existing procedures in the context of the prosecution of white-collar and economic crime. The publication of the Criminal Procedure Bill 2021 by the Government in late January now paves the way for the introduction of such pre-trial hearings and is a welcome development. Once passed, this new legislation will facilitate and streamline the prosecution of white-collar crime.
Part of a broader reform agenda to revamp Ireland’s white-collar crime laws and structures and make them fit for purpose, this bill is just one of twenty-five recommendations made by the Hamilton Review Group in December 2020. While it remains to be seen which of these recommendations will be implemented, it is clear that change is coming.
This article explores the need for pre-trial hearings and some of the recommendations made by the Hamilton Review Group.
The Need for Pre-Trial Hearings
At present criminal trials cannot commence until the jury is sworn in. In the absence of any pre-trial mechanism to resolve matters in advance, this means that preliminary legal issues relating, for example, to issues of admissibility of evidence, cannot be thrashed out until after the jury has been empaneled. This system is illogical, given that the jury then requires to be absented while these issues are determined. Particularly in complex cases, this is disruptive and wasteful, causing frequent delays and driving up costs. Inefficiencies of this nature place undue burdens on jurors, the accused and precious court resources alike – to say nothing of the taxpayer – that could largely be averted if legal and practical issues were ironed out at a preliminary stage prior to the empanelment of the jury and the commencement of a trial proper.
With this in mind, the Hamilton Review Group recently reiterated the acute need for reform in this area. In the words of its Report, pre-trial hearings would be “vital in ensuring the efficient and timely progress of criminal trials in complex economic crime and corruption cases” and accordingly “the need to expedite action on the Criminal Procedure Bill… cannot be over emphasised”. It need hardly be added that, though maximising efficiency is always important when it comes to scarce court resources, the need for it has never been greater in view of the increased strain placed on the already-creaking system by the significant backlog and disruption caused by the Covid-19 pandemic.
The Criminal Procedure Bill 2021
Against this backdrop – and nearly seven years after the General Scheme of the bill was published – the Government published the draft text of the Criminal Procedure Bill 2021 in late January, initiating its progress through the Houses of the Oireachtas. This bill is one of thirty-two on the Government’s list of priority legislation in its spring Legislative Programme and, according to the Minister for Justice, is expected to be enacted before the summer recess.
The principal purpose of this bill is provide for the introduction of pre-trial hearings which, according to the explanatory memorandum accompanying the draft bill, will deal with certain matters ahead of the beginning of a trial to ensure that the parties are ready to proceed on the day of the trial and to minimise interruptions to the unitary nature of a trial once it is in train.
Specifically, where an accused has been sent forward for trial of any indictable offence, the draft bill empowers the trial court, either of its own accord or at the application of the prosecution or defence, to hold one or more pre-trial hearings if the court is satisfied that it would be in the interests of justice and conducive to the expeditious and efficient conduct of the proceedings to do so. In addition, the bill envisages that the trial court would be obliged to hold at least one such pre-trial hearing if requested to do so by the prosecution or defence where the offence at issue is a ‘relevant offence’. This designation includes offences which carry a maximum sentence of ten years or more other offences specified by the Minister for Justice for this purpose. Clearly these provisions capture many serious white-collar crimes, but their scope is far broader than that and will extend to many other serious crimes as well.
The bill confers a broad discretion as to the orders the court may make at a preliminary trial hearing. It may make case management orders regarding the availability of witnesses, whether practical measures or technological equipment may be required, the extent to which a trial is ready to proceed and its likely length. The bill also sets out a non-exhaustive list of matters on which the court may make substantive orders, such as whether individuals should be tried together or separately, whether additional jurors in excess of the usual 12 may be required and, perhaps most crucially, permits for orders as to the admissibility of evidence to be made at pre-trial hearings. The bill prohibits the publication or broadcast of the content of a pre-trial hearing before the conclusion of the trial, subject to limited exceptions. This is an important safeguard to prevent, for example, the pool of potential jurors being tainted by reading about evidence ruled inadmissible before being sworn in.
These proposed provisions are to be welcomed for a number of reasons. At present, there is limited if any scope for many of the matters identified above to be determined prior to the commencement of a trial. The introduction of a pre-trial hearing mechanism will mean greater efficiency and will vastly reduce stop-start disruptions to the flow of a trial once commenced. The admissibility provisions are particularly significant: not only will they streamline the trial process, but in some cases may in fact obviate the need for a trial at all. For example, if critical inculpatory evidence is ruled admissible, this may result in a guilty plea from the accused, meaning the matter can proceed to sentencing without running a trial. Conversely, a pre-trial hearing could also allow issues which might result in the collapse of a trial being identified and ruled on prior to the empanelment of a jury, again potentially obviating the need for a trial where the prosecution does not have its ducks in a row. Further, the new provisions should result in more accurate estimates of how long a trial will take, with fewer trials running significantly over time. This will aid court scheduling and be helpful to juries, the parties and their legal teams alike.
While the principal purpose of the bill is to make provision for pre-trial hearings, it does also make a small number of other amendments to existing criminal procedure. For instance, it extends provisions relating to the provision of information to assist juries in their deliberations that currently exist only in relation to certain offences (e.g. under the Companies Act 2014, the Criminal Justice (Theft and Fraud Offences) Act 2001, etc.) to apply more broadly to the trial of all other indictable offences not already covered.
Broader Reform Agenda – The Hamilton Review
The Hamilton Review Group was established in November 2017 and published its Report in December 2020. Chaired by a former Director of Prosecutions from whom it takes its name and comprised almost exclusively of representatives of State bodies responsible for the investigation and prosecution of white-collar crime, the Hamilton Review Group was tasked with reporting on Structures and Strategies to Prevent, Investigate and Penalise Economic Crime and Corruption. The much-anticipated Hamilton Report makes a total of twenty-five recommendations for change to address a range of legislative, structural, infrastructural and resourcing issues identified, of which expediting the Criminal Procedure Bill is just one. Thus, though quickest off the mark, the Criminal Procedure Bill is by no means the only change coming down the tracks.
Among the Hamilton Report’s other recommendations are:
- Extension of surveillance powers currently available to An Garda Síochána and the Revenue Commissioner to other bodies with a statutory remit to investigate economic crime or corruption, such as the Office of the Director of Corporate Enforcement and the Competition and Consumer Protection Commission.
- Amendment of the ‘Custody Regulations’ to allow An Garda Síochána to engage an expert from any statutorily-mandated regulatory or investigative body, or an independent expert, to participate in interviewing a detained suspect.
- Amendment of corruption legislation to include provision for standalone search warrants allowing An Garda Síochána to require persons subject to arrest warrants to provide the passwords to electronic devices owned or controlled by them.
- Amendment of criminal justice legislation such that suspects can be detained in connection with any offence that carries a potential term of imprisonment of five years or more for Garda questioning for up to seven days, subject to judicial authorisation.
- Amendment of anti-money laundering legislation to allow judges to exercise their discretion to impose a timeframe of up to six months for freezing orders.
- The introduction of a recklessness standard into fraud offences to widen the behaviours giving rise to liability.
- Substantial, sustained and ring-fenced increase in resources for the Garda National Economic Crime Bureau (the GNECB), which is necessary if the GNECB is to meet current and future investigative demands.
- Increasing the resources for Office of the Director of Public Prosecutions for the prosecution of financial crime to include additional prosecutors, along with a seconded specialist in digital forensics and a seconded forensic accountant.
- Ring-fencing resources for the Standards in Public Office Commission to enhance its independence and capacity to fulfil its mandate.
- The establishment of a formal and permanent forum of senior representatives from relevant agencies to facilitate greater inter-agency coordination, collaboration and information-sharing.
- The development of a centralised Government framework for the procurement of electronic documentary analysis and e-disclosure systems, which can be accessed by the relevant law enforcement bodies.
- Development of judicial training in respect of complex economic crime and corruption cases, with the possibility of judicial specialism in this area.
Many of these recommendations are welcome and practical reforms which, if implemented, will no doubt assist with the investigation and prosecution of economic and white-collar crime. However, not all of them are uncontroversial. In particular, the idea of detaining suspects for up to seven days is potentially susceptible to challenge on the grounds that it is a disproportionate interference with individuals’ constitutional rights. At present, this measure is only available where the suspected offence is of an exceptionally serious nature – namely certain, but not all, types of murder (e.g. murder of a Garda or murder involving a firearm) and other offences relating to firearms and organised crime. In all cases that pertain to white-collar crime offences the maximum period of detention is currently 24 hours. Even with judicial supervision, a measure this extreme is not something that should, or even necessarily can, be extended lightly. Yet, this is not an issue that the Hamilton Report grapples with or assesses critically to any great extent.
A similar point could be made in respect of the proposed extension of the duration of freezing orders to 6 months. The rationale for this recommendation is to reduce the burden on State agencies caused by frequent court appearances required to extend these orders. However, these orders are draconian and can cause severe hardship to those whose assets they affect. It may be that there are more proportionate ways of cracking this particular ‘nut’ than by simply legislating for blanket extensions.
In any event, one point that emerges clearly and repeatedly from the Hamilton Report is that many State agencies, such as the DPP and GNECB, are chronically under-resourced in terms of funding, technologies, personnel and specialists. It is indisputable that this is an issue that needs to be urgently addressed if these bodies are to be capable of fulfilling their mandates.
It is understood that Minister McEntee is currently spearheading an implementation plan to address the recommendations in the Hamilton Report, though it remains to be seen which recommendations will ultimately be adopted and when. What is abundantly clear, however, is that reform of white-collar crime laws and structures is something that is gaining increasing momentum, a trend which is only likely to continue. As State agencies sharpen their tools, more aggressive enforcement should become a reality.
Clara Gleeson, Solicitor, A&L Goodbody
Clara will be delivering our workshop Enforcement of White-Collar Crime in Ireland–A Look to the Future on Monday 12th April 2021.
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 Hamilton Report (2020), p. 14; p. 35.
Clara Gleeson is a Litigation & Dispute Resolution Solicitor & Member of A&L Goodbody’s White Collar Crime Group.