Staff of the planned Corporate Enforcement Agency to tackle white collar crime would be more effective if they had Garda powers to interview suspects, and to carry out off-site searches of electronic data held in accounts in the cloud, the Oireachtas Joint Committee on Enterprise Trade and Employment heard today.
The committee was commencing pre-legislative scrutiny of the Companies (Corporate Enforcement Authority) Bill 2018, which will replace the current Office of the Director of Corporate Enforcement with a new Corporate Enforcement Authority.
The ODCE's Director of Corporate Enforcement Ian Drennan said that under the current custody regulations, only Gardaí have the power to interview persons arrested for questioning.
He said that when the interviews were dealing with complex financial transactions involving voluminous corporate documentation and digital forensics, it was "sub-optimal" for Gardaí to have to revert to experts sitting outside the room to formulate supplementary questions - particularly when they were up against the clock for the period of detention.
He proposed that staff at the new CEA should have powers like those of the Criminal Assets Bureau and the Competition and Consumer Protection Commission for expert civilian officers to be allowed to participate in interviews.
He said he was not suggesting that Gardaí could not do the job, but that there would be an "efficiency dividend".
Sinn Féin Spokesperson on Enterprise, Trade and Employment Louise O'Reilly asked what needed to be done to modernise search powers regarding electronic data.
ODCE Digital Forensic Specialist, David McGill said much of the required data was carried on personal devices but stored in the cloud.
He said that while ODCE staff could currently access devices, the proposed new legislation would "ameliorate" powers to search accounts in the the cloud away from the owner's company or private residence involved.
Committee Chair, Maurice Quinlivan of Sinn Fein said there was a perception that many crimes were not a crime if the perpetrator was wearing a suit, and that white collar crime was never investigated properly or on the scale required.
He said he hoped the work of the CEA would show that as a state, we will prosecute crime no matter what resources are at the disposal of the suspected offender.
Mr. Drennan rejected that suggestion, saying; "Frankly, I don't really care what they are wearing, we have carried out thorough investigations and submitted files to the DPP, and she found it appropriate to prefer very serious charges against some individuals."
The Committee also heard that the ODCE is expecting a surge of liquidations this year, which would to be challenging for the office. There were around 400 in 2020.
Sinn Fein Senator Paul Gavan asked about the current investigation into the FAI, noting that 280,000 files had been seized before Christmas. He asked whether the ODCE has enough resources to investigate the case.
Mr. Drennan said he could not comment on individual cases.
Asked about resources, Mr. Drennan said that when he took up his position, he had identified a significant deficiency in accounting expertise. The ODCE only had two accountants - one close to retirement - and no in-house digital forensic capability.
He said the ODCE now has 7 accountants, a digital forensics expert and a "state of the art" digital forensics laboratory. He said the priority was not necessarily more resources, but the right resources.
He described one "pinch point" in relation to the volume of witness statements to be taken, and confirmed that the Garda Commissioner had agreed to deploy a number of Detective Gardaí shortly on a temporary basis.
He said the new CEA would need a new digital forensic professional, a new legal professional, one administrative support officer, one additional Detective Sergeant and 8 additional Detective Gardaí.
ODCE Enforcement Lawyer, Suzanne Gunn highlighted the conflict which can arise between the ODCE's duty to investigate potential crimes, versus the individual's right to privacy when huge amounts of records are seized, some of them personal and outside the scope of the search warrant.
She proposed protocols to provide safeguards and bring clarity as to how such conflicts should be addressed.