On 2 November 2017, the Government published the long-awaited Criminal Justice (Corruption Offences) Bill 2017 (the ’Bill’). The Bill has been included in a package of measures intended to tackle white collar crime and implement a number of outstanding recommendations arising from the Mahon Tribunal report into planning matters and payments to politicians. The Bill is intended to assist Ireland meet its commitments under various international anti-corruption instruments. It also represents the latest statutory effort to enhance transparency over official actions following on from the Freedom of Information Act 2014, the Protected Disclosures Act 2014 and the Regulation of Lobbying Act 2015.
The Bill is significant in that it seeks to modernise and radically consolidate the law on corruption and bribery in this jurisdiction, repealing and replacing the existing legislation (the Prevention of Corruption Acts 1889 to 2010) with a single statute. If implemented, the Bill will impute offences committed by employees and agents to the company as well as opening company management to personal and criminal liability.
The headline proposals within the Bill include:
1. A broader definition of ’corruptly’
The Bill seeks to significantly expand the definition of the term ’corruptly’ to include acting with an improper purpose personally or by influencing another, whether by (a) making a false or misleading statement; (b) withholding information; or (c) by other means (emphasis added)
2. Expanded offences
The breath and scope of the Bill is clearly evidenced in the offences it proposes to create:
Section 5 of the Bill provides for the offences of active (bribe-giving) and passive (bribe-taking) corruption. This section criminalises bribing someone to do an act in relation to his or her office or conversely accepting such a bribe. No distinction is made between the public and private sector.
Section 6 of the Bill includes a new offence of ’trading in influence’ to criminalise bribing a person, or conversely the taking of a bribe by a person, who may exert an improper influence over the decision-making of a public or foreign official. It is immaterial whether the alleged ability to exert the improper influence existed or whether the supposed influence led to the intended result.
Section 7 of the Bill provides firstly, that it is an offence for an Irish official (defined to include inter alia any person employed by or acting for or on behalf of the State) to take a bribe from any person or; secondly, to make use of confidential information acquired in the course of their duties for the purpose of corruptly obtaining an advantage.
It is an offence under section 8 of the Bill to give a gift, consideration or advantage to a third party, where the giver knows or ought to know that it will be used to facilitate the commission of a corruption offence under the legislation.
Section 9 of the Bill provides that it is an offence to corruptly create or use a document, knowing or being reckless as to whether this document contains a statement which is false or misleading with the intention of inducing another person to do an act, in relation to his or her office, to his or her own prejudice or the prejudice of another. ’Document’ is defined to include a broad range of paper, electronic and other forms of records.
Section 10 of the Bill makes it an offence to threaten harm (loss, disadvantage or injury) to a person with the intention of corruptly influencing that person or another person to do an act in relation to his or her office.
3. International reach
The proposed reach of the Bill extends beyond Irish shores. As drafted, the Bill provides that a person may be tried in the State for certain corruption offences committed outside of the State where those actions would constitute an offence if committed within the State. In this regard, the Bill appears to replicate provisions of the UK Bribery Act 2010.
The Bill seeks to extend the existing presumptions of corruption, attaching to certain acts currently provided for in the Prevention of Corruption Acts 1889 to 2010. The Bill provides for a presumption of corruption in respect of certain gifts, considerations or advantages to either Irish or foreign officials and connected persons as well as a presumption of corruption in respect of donations to politicians and political parties. There is further a presumption of corrupt enrichment in respect of the undeclared interests of Irish public officials or office holders who are required to declare such interests under statute. These presumptions can be rebutted by evidence proving the contrary on the balance of probabilities
Under the Bill, the penalties for the new and existing offences are to be expanded. Penalties for active and passive trading in influence are 12 months and/or Class A fine (€5,000) on summary conviction and 5 years and/or unlimited fine upon conviction on indictment. Penalties for other main offences provided for under the Bill are 12 months and/or Class A fine on summary conviction and 10 years and/or unlimited fine upon conviction on indictment. Bodies corporate can be liable to, on summary conviction, a Class A fine and, on conviction on indictment, to an unlimited fine.
The Bill also provides, in certain circumstances, for the forfeiture of any gift, consideration or advantage or, in the alternative, the forfeiture of land, cash or other property of an equivalent value. Provision is also made for the forfeiture of any office occupied by an Irish official, following conviction on indictment for certain corruption offences, where the court considers it is in the interests of justice or to maintain and restore public confidence in the public administration of the State. The Bill further empowers a Court to make an order prohibiting such an official from seeking to hold or occupy certain offices for a period of up to ten years.
6. Liability of corporate bodies
In a clear effort to address an oversight in the current statutory regime, the Bill provides for liability for corporate bodies for corruption offences. Specifically, section 18 of the Bill provides for liability to attach to a body corporate in circumstances where an offence is committed by a ’director, manager, secretary, or other officer of the body corporate, a person purporting to act in that capacity, a shadow director, an employee, agent or subsidiary of the body corporate’ where such a party is acting with ’the intention of obtaining or retaining business for the body corporate, or an advantage in the conduct of business for the body corporate’.
In order to avoid liability, a body corporate will need to prove that it took ’all reasonable steps’ and ’all due diligence’ to avoid the commission of the offence
7. Management Liability
In addition, section 18 (3) provides for the individual criminal liability of senior officers of a company for offences committed by the company with their consent, connivance or wilful neglect. Penalties include imprisonment and an unlimited fine.
While an order has been made for the Bill to go to its second stage before the Dáil, it is not possible to predict a timeline for its passage through the various legislative stages. Although there is no set date for implementation, the wide ranging nature of the proposed provisions should trigger organisations to put in place anti-corruption policies or to review policies already in place. Such policies will almost certainly form the cornerstone of any defence to proceedings brought under the enacted legislation.
Generally speaking, companies that are already subject to and in compliance with the UK Bribery Act, are likely to already have effective policies and procedures in place. Given the proposed extension of liability to company directors and management, professional advice should nevertheless be sought and an overview of all relevant policies and procedures conducted.