Sanctions and Courts
Many breaches of regulatory legislation comprise a criminal offence. Many regulatory offences may be tried either summarily or on indictment in the Circuit Court, with a jury. This choice is usually one for the prosecutor / regulatory authority.
The District Court has the power to try cases summarily. However, the District Court may decide that the matter is not, in fact, minor and consider the view of the DPP. In the case of more serious offences, the better course is that the regulator takes the decision in conjunction with the DPP. The DPP has published guidelines for prosecutors.
To some extent, the Constitution requires that financial penalties are imposed by Courts. However, a growing trend has been the provision of regulators with powers to provide penalties in lieu of going to Court.
The Revenue Commissioner, the Financial Regulator, an Garda Siochana and other enforcement authorities have increased powers to impose out of Court penalty notices as an alternative to prosecution.
Many European Union countries and European Union laws provide for obligations to provide civil sanctions. In some cases, this has been used as a basis of justification for civil sanctions imposed by administrative bodies because matters required by European Union law are permissible under the Constitution notwithstanding any other general provisions.
If a penalty is so high as to be punitive there is an argument that under Irish constitutional law that it can only be imposed by a Court. The European Communities Act allows the creation of indictable offences by statutory instrument. The maximum fine is €500,000 or three years imprisonment. Regulations must be laid before the Oireachtas and may be annulled within 21 says.
Licensing and Offences
Generally, when an activity requires a licence, authorisation or consent, the breach is an offence. The general principles of criminal procedure in the District Court or an indictment in the District Court and Circuit Court apply. Competition law cases are dealt with by the Central Criminal Court.
An Garda Siochana no longer deal with many regulatory offences. In former times an Garda Siochana were directly involved in enforcing many regulatory offences. However more modern legislation has typically passed the role of enforcement to specialised administrative agencies or regulator. An Garda Siochana may assist regulators in their activity in some case.
Much legislation allows for authorised officers of regulators to perform an investigative role. They both administer the scheme and police it. For example, the Competition and Consumer Protection Commission, the Central Bank, the Food Safety Authority and numerous other bodies have significant powers. They typically allow authorised officers to undertake investigations for the purpose of enforcement of the relevant scheme.
Typical powers include
- powers to enter premises, including by force if necessary,
- powers to require persons carrying on the activity to provide books, documents or records under their control or give information reasonably required,
- the power to inspect and take copies of books, documents and records,
- a requirement to give information reasonably,
- power to apply for a search warrant before a Judge power to seize books, documents and records,
- requirements to maintain books and records as may be required.
Powers may only be used for those purposes for which they were granted. They may be set aside for being used for the purpose contemplated by the legislation.
Officers are obliged to obtain a warrant to search a dwelling and in many other cases, any premises. They must usually produce evidence of their authority.
Records generally include written records and records in any other non-durable medium such as discs, computer records, etc.
Matters seized can generally be retained during the course of the investigation.
Criminal Law Considerations
General criminal law procedure protections in the Constitution are usually accepted as including a privilege against self-incrimination. This is a right not to be compelled to give an answer which may be the admission of a criminal offence. It is sometimes labelled the right to silence.
Persons, the subject of the investigation must be given certain warnings set out in the Judges Rules,. See our guide in respect of criminal procedures. They must be warned that statements may be given in evidence against them. The privilege against self-incrimination does not apply for statements made voluntarily.
The Courts have decided that provided it is proportionate to the matter in question, the right to silence may be restricted. Legislation must not impair Constitutional rights and must not be arbitrary or unfair. In regulatory matters, the Courts have decided that in most cases, it is proportionate persons can be required to answer questions notwithstanding that it would incriminate them.
The answers, however, are not admissible in subsequent criminal proceedings unless they were made voluntarily i.e. without compulsion. This would not generally be the case given that they are made under compulsion of law. If it is permissible the statement may be used in evidence against him in proceedings other than proceedings for an offence other than the offence. However, this does not exclude the offence of refusing or failing to give an answer or giving a false or misleading answer.
Irish criminal law generally takes account of matters that occur within the State. International recognition of criminal offences is very limited. The European Arrest Warrant (“EAW”) has largely replaced international extradition arrangements in the EU.
A state in which a person is arrested must return the person to the state where the EAW issued within 90 days of arrest. If the person gives his consent the decision may be taken within ten days. The requirement that the matter be an offence in both countries has been abolished for many serious categories of offence.
Regulatory Offences Strict
Most regulatory offences are ones of strict liability. This means that once the offence has happened is sufficient grounds for conviction. No mental element, intention or guilty knowledge may be proved or indeed exist. There is a presumption at law that for a matter to be a criminal offence there must be some element of guilt or permissible defence for a defence of mistake.
Clear language must be used that a person may be liable without any guilty knowledge. Unless this is done it is necessary to establish wrongdoing / guilty mind or criminal intent in relation to the offence. It may as a matter of necessary implication be the case that there is no fault requirements or that strict liability is imposed. The requirements for constitutional interpretation have implications for regulatory offences.
Regulatory offences often make the employer responsible for the acts of his employees. This is permissible under the Constitution in relation to important regulatory objectives, such as health, safety and welfare requirements. An employer may not be made liable for severe criminal sanctions on a vicarious basis other than where offences are regulatory and do not carry a substantial measure of opprobrium.
Offences by Companies
Crimes may be committed by companies. This may occur where the directors or those directing functions within the company cause the company to commit the relevant offence.
It is not usually enough to show to avoid responsibility that the offence was committed in breach of the company’s internal regulations or even management instructions. Otherwise regulatory criminal law would be undermined.
The basis of liability for the corporation is that the person who directs the company has committed the offence. Frequently other persons in the company such as a director may also be convicted individually where they consent to the offence.
Companies do not enjoy the full extent of constitutional rights that individuals do. Many rights are conferred on citizens which implies natural persons. Provisions such as the right to a trial on a criminal Courts charge in due course of law are not limited to individuals.
The relevant matter must be within the scope of matters assigned to them by the company. Where the directors or controllers of a company commit a fraud on the company or act way outside their authority, the company may not be liable.