The Criminal Justice (Corruption Offences) Act 2018 (34-page / 538KB PDF) entered into force on 30 July. It was signed into law by the Irish president, Michael D Higgins, on 5 June.
Dublin-based white collar crime expert Dermot McGirr of Pinsent Masons, the law firm behind Out-Law.com, said: "Now that the Act has been brought into force companies will need to focus on practical compliance steps. This will involve carrying out a risk assessment of their operations in order to understand where the corruption risks arise, ensuring staff are trained on anti-corruption practices, ensuring anti-corruption policies are in place and are aligned with the new legislation, and ensuring the necessary third party due diligence is being carried out."
"In our experience, while it is of course important to have policies and procedures in place, the key to compliance is driving the right behaviours throughout the business – central to this is board level engagement from the start," he said.
The new Act criminalises both 'active' and 'passive' corruption, broadly corresponding to the offering and accepting of a bribe. It also criminalises active and passive 'trading in influence', which is to do with promising an undue advantage to someone who claims to be able to exert improper influence over the decisions of a public official.
These offences apply regardless of whether the alleged ability to exert improper influence existed, or whether the supposed influence led to the intended result.
The Act also creates a number of new offences targeted at Irish public officials. It will criminalise any act of an Irish public official carried out in the course of their official position with the intent of corruptly obtaining an advantage for a third party, regardless of whether or not a third party was involved. It will also criminalise the use of confidential information obtained by a public official through their office for a corrupt purpose.
A company will be guilty of an offence under the 2018 Act if the offence is committed by an officer, employee, agent or subsidiary of the company, and the offence was committed with the intention of obtaining or retaining business or any business advantage for the company.
The individual who committed the offence will also be personally criminally liable under the Act, and officers of the company may also be personally criminally liable. The majority of offences under the 2018 Act carry a maximum penalty of ten years in prison and an unlimited fine.
This means that the same wrongful act may be prosecuted on three different fronts: the individual who undertook the wrongful act; the officer of the company who consented to the act or who was wilfully negligent; and the company itself.
A company will have a defence against corruption proceedings brought against it if it is able to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. The practicalities of establishing this defence will be similar to those necessary to establish the 'adequate procedures' defence available to UK companies under the 2010 Bribery Act in the UK.
The new Act could have extra-territorial effect on both companies and individuals under certain circumstances. For that to happen the corrupt act which takes place outside of Ireland must be an offence in Ireland, the corrupt act must also be an offence under the law of the country where the corrupt act takes place, and either the person who carried out the act is an Irish official or citizen, or they had their principal residence in Ireland for the period of 12 months immediately preceding the corrupt act or the company in question is a company formed under Irish company law or is any other body corporate established under the laws of Ireland.
Ireland's justice minister, Charlie Flanagan, said: "This is a robust piece of legislation with sufficiently tough and effective penalties. For conviction on indictment the penalties for most offences are imprisonment for up to 10 years, an unlimited fine, forfeiture of any bribe, possible forfeiture of office for public servants and elected officials and possible prohibition on seeking public office for up to ten years."
"One of the key aspects of the new Act is a new corporate liability offence whereby a body corporate may be found guilty if anyone acting on behalf of that body commits a corruption offence. A body corporate convicted under the Act could face a potential unlimited fine. It will be a defence for the 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," the minister said.
