ICSA Ireland

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Regulatory enforcement and white collar crime − time for change?

05 May 2016

The Law Reform Commission (LRC) has published an issues paper on twelve topics relating to regulatory enforcement and white collar crime. The paper concentrates on two broad themes and draws on recent examples of law reform in these areas in several countries.

The first theme is whether the supervisory and enforcement powers of the state’s main financial and economic regulators are sufficiently adequate or need to be supplemented. Some of the main issues on which the LRC is inviting submissions include:

  • More standardisation of the powers of different regulators and greater coordination between regulatory authorities
  • Increased use of civil financial sanctions by regulators
  • Greater use of negotiated compliance agreements by regulators
  • Introduction of deferred prosecution agreements, similar to those used in the US and UK (i.e. suspending prosecution for breach conditional upon a regulated entity becoming compliant within an agreed timeframe)
  • A single regulatory appeals system from decisions of different regulators.

The second theme considers whether there are gaps in the existing criminal law, particularly in the area of white collar crime. Some of the key issues upon which the LRC is seeking feedback include:

  • Whether reckless trading should be made a criminal offence
  • Whether a defence of due diligence should be introduced for certain corporate offences
  • How criminal liability should be attributed to companies and to their directors and officers
  • Whether the current law relating to fraud offences is fit for purpose. 

Responses to the issues paper closed on 30 March 2016 and these responses will inform the LRC’s specific proposals for law reform in this area.