New agency must be fit for purpose - Fighting white-collar crime

The response to the announcement that the Government is expected to strengthen and rename the agency entrusted with overseeing company law and investigating white-collar crime must be mixed; once bitten, twice shy, as it were. The idea of a stronger, more effective agency — the Corporate Enforcement Authority — is very welcome and long overdue, but that very same welcome greeted the establishment of the Office of the Director of Corporate Enforcement (ODCE)

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Unfortunately, as the judge-directed collapse of the trial of former Anglo Irish Bank chairman Seán FitzPatrick showed, the ODCE was unequal to the task it was set and imploded in a trial that was very important on myriad levels — not least of which was the public’s capacity to believe that official Ireland was, at last, prepared to confront allegations of white-collar crime in an appropriate way.

That collapse was another example of our cynicism-fuelling culture of making impressive laws, but not matching them with enforcement capacity or diligence. It may not be fair to blame the ODCE for that collapse, as it was established on a footing that put its objectives far beyond its reach — like so many other under-resourced watchdog agencies trying to confront wrongdoing in this society. The garda office charged with investigating online crime, building regulation supervision and, amazingly, child protection, are examples of this knife-at-a-gunfight inadequacy. However, any sympathy for the ODCE is diluted, as the agency, and many others like it, played along with the charade and did not publicaly demand greater resources, so it could do its job properly. The old civil service maxim — keep your head down and say nothing — applied. As ever, career, rather than public interest, was served.

In May last year, Judge John Aylmer directed a jury to acquit the former Anglo boss of all charges after he ruled that the investigation leading to it was flawed. It emerged that the ODCE solicitor in charge of the labyrinthine and hugely expensive investigation had no experience in serious criminal investigations. The judge found he had mishandled the legal formalities around taking evidence. Separately, an ODCE legal adviser with a lead role in the investigation, according to evidence given in the absence of the jury, shredded vital documents during a “panic attack” in May, 2015. The DPP was told of this misstep and the first trial of FitzPatrick collapsed as a result.

That comedy of avoidable errors provokes head-scratching disbelief, but the decision by government, following the attorney general’s advice, not to publish the ODCE report into the collapse, is something far more sinister. The legal advice is assuredly sound, but the impact, no matter how it is dressed up, can only sharpen the disconnect between citizen and state. Publishing an edited version is hardly satisfactory, either. All around the world, governments are challenged forcefully by people who feel betrayed, impoverished, and cast aside. All too dangerously, our body politic seems to make no connection between that maelstrom and the kind of convenient, establishment-saving failure epitomised by this sorry episode, just the latest in a line of disappointments.

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