The Criminal Enforcement Division Competition and

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  • 1.Effective Interviews in Regulatory Investigations Paul Hanna Deputy Director of Criminal Enforcement Conducting Effective Regulatory Investigations Friday October 20th 2017
  • 2. 2 The CCPC Structure & Functions Criminal Enforcement Division Legislation Cartel Convictions to date CCPC Investigations Theory in Practice CCPC Challenges Presentation Overview
  • 3.3 Chairperson: Isolde Goggin Patrick Kenny Fergal O’Leary Brian McHugh The CCPC
  • 4.Inform consumers about their rights Assess specific mergers Enforce consumer protection law Advise Government & influence policy Foster business compliance Enforce product safety regulations Monitor compliance with Grocery sector regulations Enforce competition law Authorise credit intermediaries Provide personal finance information & education Alternative Dispute Resolution Our Functions Enforce Protect & Regulate Inform
  • 5.5 Criminal Enforcement Division
  • 6.Competition Act 2002 Section 4 (1) Prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices which prevent, restrict or distort competition (a) Directly or indirectly fix purchase or selling prices or any other trading conditions (b) Limit or control production, markets, technical development or investment (c) Share markets or sources of supply Section 6 makes breach of section 4 a criminal offence Section 8 sets out penalties (upon conviction on indictment by DPP) 10 years in prison and/or €5m or 10% of turnover Res judicata – follow on actions for damages
  • 7.Criminal breaches of the Competition Act 2002 Bid Rigging: Illegal conspiracy in which competitors join to artificially increase the prices of goods and/or services offered in bids to potential customers Price Fixing: An agreement between participants on the same side in a market to buy or sell products and/or services at a fixed price, or maintain the market conditions such that the price is maintained at a given level by controlling supply and demand Market Sharing: When competitors agree to divide or allocate customers, products or territories among themselves denying consumers the benefit of choice 7
  • 8.8 Cartel Convictions to Date
  • 9.CCPC Investigations Approach & Strategies
  • 10.10 What informs the CCPC’s work?
  • 11.11 Stages of a CCPC Investigation
  • 12.Investigative Strategies Witness It is advisable that there is no advance disclosure to any witness in advance of meeting them No witness should be made aware of any other witness who has provided a witness statement to the Regulatory Authority It is the preference that witnesses meet Regulatory Authority on their own but they may have someone present should they so wish, including a solicitor No witnesses should be provided with their witness statements at the conclusion of any meeting with the Regulatory Authority Investigative Policy decisions recorded in a decision log and made by the Senior Investigator will always be of the utmost importance in determining the outcome of an investigation Investigative strategies are carefully determined approaches and tactics that produce a plan for conducting important elements of the investigation Examples of investigative strategies include: Intelligence, Witness, Interview, Arrest, Suspect, Family Liaison, Forensic, Search, Media The ABC Principle During an investigation, there is a golden rule to apply what is known as the ‘ABC’ principle A Assume nothing B Believe nothing C Challenge (and check) everything 12
  • 13.Interview Strategies: Planning Planning Know your subject and the law relating to same What information do you hope to obtain during the interview Know the background of your witness insofar as you can, or endeavour to obtain this information during the early stages of the interview Questions designed to induce the witness to tell a story rather than elicit a ‘yes’ or ‘no’ response Suspect Planning Voluntary interviews by appointment Suspects told interview will be after caution and their entitlement to ‘legal advice’ and are ‘free to leave’ Right to silence – Constitution and ECHR Conducting Interview Generally not more than two investigators present Ensure witness is aware of reason for interview and the implications of making a statement Be aware of your own role in the process, take time for introduction. Attitude counts for everything, avoid personality conflict Control the interview, make notes Presence of Solicitor How do I deal with the presence of a solicitor Pre-interview disclosure Obstructive solicitor 13
  • 14.Interview Strategies: Recording “If it’s not written down, it didn’t happen” All disclosures, exhibits fully documented Memo read over to suspect and requested to sign it Video recording with consent of person Avoid asking leading questions, ask open ended questions TED – Tell me, Explain to me, Describe to me 14 Do not be confrontational or oppressive If evidence/documents/exhibits are available then have the witness produce them, mark them, hand them over and include in statement Build rapport Avoid interrupting the witness unnecessarily; at the same time ensure the witness remains focused
  • 15.15 The Caution
  • 16.Theory in Practice Successful Prosecutions & Challenges Ahead
  • 17.Convictions in 2017 On 17 July 2014, a consumer purchased a car from Jonathan McSherry Car was advertised on with 135,000 km Enquiries by the CCPC found the mileage on the 28 February 2014 had been 175,629 km Jonathan McSherry was convicted of the offence of a misleading commercial practice and was sentenced to a prison term of three months 17 Brendan Smith fined €7,500 for engaging in and implementing an anti-competitive agreement contrary to the Competition Act 2002 Handed a three-month prison sentence, suspended for two years, for attempting to impede a prosecution, contrary to the Criminal Law Act 1997 Aston Carpets was fined €10,000 for engaging in and implementing an anti-competitive agreement contrary to the Competition Act 2002 Ireland’s first conviction for bid-rigging Aston Carpets, May 2017 First custodial sentence for selling clocked car, Jonathan McSherry, July 2017
  • 18.18 CCPC challenges
  • 19.19 Questions Paul Hanna 01 402 5547