What is the change in law and in those who enforced the law?
Corporate crimes, in the 20th century, were addressed using conventional criminal law practices. This meant that the burden of proof was on the prosecution to prove beyond reasonable doubt that company officers had ‘knowingly and wilfully’ broken the law. Wrongdoers consequently were awarded a presumption of innocence, were able to take advantage of a criminal’s constitutional rights and there was a requirement that offenders had to be found subjectively culpable of wrongdoing. Since 1998, however, corporate crimes have increasingly been addressed by regulatory crime mechanisms, which avoid ‘onerous due process safeguards’ and has led to the much greater employment of strict liability.
To allow for a new architecture of corporate enforcement the law needed to change. In the past, under the 1963 act, the burden of proof was on the prosecution to prove that the accused intentionally committed the wrongdoing. There was a blanket reversal of this provision in the Company Law Enforcement Act 2001 so that now the accused was ‘required to prove their own innocence by showing that they did everything they could reasonably have done to prevent the wrongdoing from occurring.’
Corporate crime in the 20th century was predominantly enforced by the ordinary police. The gardaí investigated these crimes, and the DPP prosecuted them. The gardaí weren’t staffed with either accountants or lawyers, they weren’t trained to detect corporate wrongdoing, and they also didn’t consult with professionals outside of the police force. Fortunately, since the 1990s, numerous specialist agencies were established to tackle corporate wrongdoing.
The new architecture for corporate enforcement in Ireland was only possible, from 1998 onwards, with the ‘agentification’ of corporate enforcement. Ireland at this time increasingly began to rely on bodies such as the Office of the Director of Corporate Enforcement (ODCE), which was established in 2001 to regulate corporations. Unlike previously in Ireland, corporate regulation enforcers now had the ‘specialist knowledge, training and skills to deal with corporate wrongdoing.’