Corporates will need to take reasonable measures to ensure that employees and other persons do not engage in bribery and corruption, or face criminal consequences under the Government’s newly published Criminal Justice (Corruption Offences) Bill 2017. The proposed measures will increase pressure on Irish corporates to draw up effective anti-bribery policies and procedures, if they have not already done so.
The Criminal Justice (Corruption Offences) Bill 2017
The Bill is intended to update and modernise Ireland’s anti-corruption laws, which are currently set out in a patch work of measures, primarily encompassed in the Prevention of Corruption Acts 1889–2010 (’PCA’). It follows on from an earlier Heads of Bill published by the then Government in 2012.
The Bill contains six corruption offences in all. Some of these offences reflect those set out in the PCA, although with some modifications. For example, in some respects, the new bribery offences appear to have a narrower scope than those set out in the Prevention of Corruption Act 1906. However, the Bill also contains a number of new offences, not explicitly covered under the existing legislation. These include, in particular:
Most significantly, the Bill contains a new provision which will, if enacted, mean that a corporate can be held criminally liable for a bribery or corruption offence committed by certain persons, including its officers, employees, agents or subsidiaries, with the intention of obtaining or retaining:
However, the Bill provides that it will be a defence for the relevant body corporate to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
Once the Bill becomes law, a corporate will need to take active measures to prevent those acting on its behalf from committing bribery or corruption offences with the intention of benefitting the corporate. While the Bill does not give guidance on what will constitute taking all reasonable steps and exercising all due diligence, this is likely to include adopting and maintaining an effective anti-bribery and corruption compliance programme. Many corporates will already have these measures in place but those that do not should start considering how to go about devising and implementing such a programme.
Corporate entities should note that the Bill is not the only example of legislation which holds a corporate entity responsible for failing to supervise adequately those working on its behalf. For example, under the European Union (Market Abuse) Regulations 2016 a legal person can be held criminally liable in circumstances where a person under its authority commits insider dealing, unlawfully discloses inside information, or engages in market manipulation once certain conditions are fulfilled. According to one of these conditions, the commission of the relevant offences must be attributable to the legal person failing to exercise the requisite degree of supervision or control.
Moves are also afoot to clarify the law regarding the circumstances under which a corporate entity can itself be held to have committed a criminal offence. Specifically, the Law Reform Commission is currently examining the issue of corporate offences and regulatory enforcement and is expected to publish its recommendations in the form of a consultation paper towards the end of 2017.