The Cabinet has approved changes that would see the Office of the Director of Corporate Enforcement established as an independent agency.

Under the proposed new laws, which were brought to Cabinet by Minister for Business, Enterprise and Innovation Heather Humphreys, the organisation would become the Corporate Enforcement Authority and will receive new powers aimed at strengthening the regulatory framework around how business may be conducted.

These will include new investigative tools, including new search and entry powers to enhance the authority's ability to gather evidence that is held electronically.

It will also give the organisation the ability to appoint its own specialist staff and have up to three full-time commissioners.

This is designed to give the body the flexibility to structure itself to meet the differing demands of its remit, which includes investigation, prosecution, supervision and advocacy.

The new authority will, however, retain all the same functions and powers held currently by the Director of Corporate Enforcement.

The draft legislation, which will be referred to as the Companies (Corporate Enforcement Authority) Bill 2018, is being seen by the Government as a key action in its package of measures to tackle white collar crime.

The ability of the ODCE to carry out its functions has been in the spotlight since the acquittal of former Anglo Irish Bank chairman, Sean FitzPatrick, in May of last year.

Mr FitzPatrick was acquitted of all charges against him after the trial judge withdrew the case from the jury having identified serious shortcomings in the investigation of the case, which created a real and substantial risk that the processes were unfair and the trial was unsafe.

In the wake of that decision, the Government asked the ODCE to prepare a report about the investigative failings.

However, the Attorney General has decided that the report cannot be published because to do so would breach the Companies Act, as it could expose the way in which the ODCE carries out its work and could put current or future investigations at risk.

As a result, the Department of Business, Enterprise and Innovation decided to prepare its own account of the investigative failures identified by Judge Aylmer during the 2008-2012 Anglo Irish Bank probe.

It finds that with the benefit of hindsight, it is clear that the ODCE lacked the specific skillsets, experience and risk management processes to allow it to undertake multiple, parallel investigations of the scale and complexity involved in the investigations into matters relating to the former Anglo Irish Bank.

The report says this resulted in "errors in the manner in which witness statements were taken, which were deemed by the Judge to be the most significant shortcoming, as well as shortcomings in the investigation process and the issue of the shredding of documents".

In particular, it says, it was clear that there was a "significant deficit" in the specific areas of in-house forensic accountancy and in-house IT forensic expertise, which would have been essential to an investigation of this complexity.

The department's account also points to a "lack of expertise and experience" leading to shortcomings identified by Judge Aylmer in the way in which the ODCE set about taking statements from witnesses and the failure to presume innocence as well as guilt.

"In particular, the process by which the taking of witness statements was led by ODCE civilian staff was the subject of judicial criticism," it says.

However, it adds that this occurred against a backdrop of the Office running other complex investigations which absorbed resources, including gardaí, to a greater extent than had initially been anticipated. 

According to the report though, multiple reforms have been implemented by the ODCE since the investigation took place, which address many of the issues identified by Judge Aylmer and equip it for large and complex investigations in the future.

These include the recruitment of eight suitably qualified and experienced Forensic Accountants together with a suitably qualified and experienced Digital Forensics Specialist, two Enforcement Portfolio Managers and two Enforcement Lawyers.

Speaking on RTÉ's News at One, Minister Humphreys said she would like to be able to publish the report, but cannot due to legal advice.

The ODCE also has an approved complement of seven members of An Garda Síochána, the document states.

Specialised training was also provided in December 2012 in the Garda Training College for ODCE staff to improve their ability to investigate complex breaches of company law, to assist with statement taking, interviewing of witnesses, preparation of files for the DPP, exhibits handling and disclosure. 

Garda Level 1 Interview training was also made available in 2015, the department's report says.

Procedural changes have also been changed so that all criminal investigations are now led by members of An Garda Siochana assigned to the ODCE.

The report only refers to the role of the ODCE in the Sean FitzPatrick trial and not other organisations involved in it.

An additional €1m was allocated to the ODCE in Budget 2019 to support its establishment as an independent agency.

Calls for publication of report on ODCE to be published

Independent 4 Change TD Mick Wallace has called for a report on the ODCE's investigative failings following the acquittal of former Anglo Irish Bank chairman, Sean FitzPatrick, last year, to be published. 

Deputy Wallace said it was in the public interest to have it published. 

During Topical Questions in the Dáil, he told Minister Humphries that the report had been in the department and on her desk for 17 months.

Minister Humphries said the Government had hoped it would be possible to publish the report, but they had to ensure ongoing and future investigations are not compromised.

She said while she could not publish the report itself, she has published an account of the investigative shortcomings. 

However, Mr Wallace said her account did not outline the details of the shortcomings. 

"I am convinced we need a full independent inquiry," Mr Wallace said. 

Minister Humphries insisted she would be breaking the law if she published the report. 

Mr Wallace said the Dáil was now being asked to examine legislation to establish a "beefed up" ODCE without knowing the details of the deficiencies outlined. 

Additional reporting: Edel McAllister