The much anticipated Criminal Justice (Corruption Offences) Act 2018 (the ‘Act’) was commenced on 30 July 2018. The Act was signed into law by President Higgins on 5 June 2018.
The Act overhauls Ireland’s existing anti-corruption legislation and brings it into line with international best standards.
The Act criminalises both direct and indirect corruption in both the public and private sectors and significantly increases the penalties for corruption offences.
In welcoming the new Act, the Minister for Justice, Charlie Flanagan T.D. commented on the most significant provisions introduced by the Act, including the introduction of criminal liability for corporate bodies and senior management for offences under the Act. It will be a defence for a body corporate to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. This is intended to incentivise bodies corporate to have in place effective and rigorous systems of checks and balances to prevent corruption.
As highlighted by the Minister, key aspects of the Act are as follows:
- New offences of active and passive trading in influence (as recommended by GRECO, the Council of Europe anti-corruption body)
- New offence for an Irish official doing a corrupt act in relation to his or her office as recommended by the Mahon Tribunal
- New offence of giving a gift, consideration or advantage knowing that it will be used to commit a corruption offence as recommended by the Mahon Tribunal
- New offences for creating or using false documents as required by most International Conventions
- New offence of intimidation where a threat of harm is used instead of a bribe
- The presumption of corrupt gifts extended to connected persons as recommended by the Mahon Tribunal
- The presumption of a corrupt donation expanded which makes failure to disclose or return a donation grounds for the presumption to apply as recommended by the Mahon Tribunal
- New provisions for forfeiture of public office and for prohibition from seeking public office for up to ten years for Irish Officials
- New strict liability offence for bodies corporate where any individual connected with the company has been found guilty of corruption. The penalty for the company can be an unlimited fine. This has been recommended by the OECD and by the Mahon Tribunal.
- Provisions for seizure and forfeiture of bribes.
Due to the sweeping nature of the Act, a one-size-fits-all approach will not work. Instead, companies will need to undertake their own assessment of the risk in order to determine what due diligence and training procedures are appropriate to their business. While the form that this should take will vary, at a minimum, the following steps should be implemented:
- Companies need to ensure that they have a robust anti-bribery policy in place, and if there is one already in place, these policies should be reviewed and updated in light of the Act
- Responsibility for rolling-out and monitoring compliance should be vested in a designated employee
- Once the policy is in place/reviewed, notification and training should be rolled out regularly to all directors, employees and contractors.