Irish anti-corruption law reform moves one step closer

Justice minister Charles Flanagan introduced the Criminal Justice (Corruption Offences) Bill to the upper chamber of the Irish legislature, citing the “broad support” that it received from the lower house, the Dáil. The bill is a central part of the Irish government’s 2017 white collar crime package, and will also enable Ireland to meet its international commitments, Flanagan said.

Corporate crime expert Dermot McGirr of Pinsent Masons, the law firm behind Out-Law.com, said that the bill would introduce a number of new offences as well as expand the scope of Irish anti-corruption laws beyond targeting bribery of public officials to businesses operating across all sectors.

“The new legislation contains a general offence of ‘active and passive corruption’, which applies to any person doing a corrupt act in relation to his/her office, employment, position or business,” he said. “It is therefore potentially very wide in application and is something all businesses operating in Ireland will need to take note of.”

“Businesses will have a defence where they can prove that they took reasonable measures and exercised due diligence to avoid the commission of the offence, similar to the ‘failure to prevent’ offence under section 7 of the UK Bribery Act. It means that businesses will need to ensure that they have such measures in place, and will need to include anti-bribery provisions in their agreements with service providers and subcontractors,” he said.

“Enforcement under the existing legislation has been relatively limited. This legislation brings in new, tougher penalties, which are expected to be enforced more regularly,” he said.

Once in force, the bill will repeal and replace the seven existing Prevention of Corruption Acts, which date from between 1889 and 2010. It will criminalise both ‘active’ and ‘passive’ corruption, which broadly correspond to the offering and accepting of a bribe; as well as 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. The offences will apply regardless of whether the alleged ability to exert improper influence existed, or whether the supposed influence led to the intended result.

The bill would also 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 would also criminalise the use of confidential information obtained by a public official through their office for a corrupt purpose. These proposed offences reflect the recommendations of the Mahon tribunal into corrupt payments to politicians, which ran from 1997 to 2012.

The offences created by the bill would apply to Irish businesses and individuals wherever in the world the corrupt acts take place, and regardless of whether the acts are a criminal offence in that particular jurisdiction. Where the offence is committed by an individual with the intention of creating an advantage for a company, then the company as well as the individual may be liable for the offence unless the company can show that it took all reasonable steps and exercised due diligence to avoid the commission of the offence.

The bill would also create more severe penalties for businesses and individuals that engage in corrupt behaviour, of up to 10 years imprisonment and/or an unlimited fine in respect of the main corruption offences. The courts would also be given the power to remove certain public officials from office, and to exclude them from holding office for up to 10 years, subject to certain safeguards. The bill also expands on existing seizure and forfeiture laws by allowing the courts to order the forfeiture of assets equal to the value of the bribe as an alternative to forfeiture of the bribe itself.