The Criminal Justice (Corruption Offences) Bill 2017 is part of a series of measures announced by the Irish Government on 2 November to tackle white-collar crime and corruption.
The Bill is a long overdue consolidation of Ireland's existing legislation relating to bribery and corruption, the Prevention of Corruption Acts 1889 to 2010. It also includes a number of new offences and penalties, many of which are intended to address the recommendations made by the Mahon Tribunal, as well as the requirements of certain international conventions and agreements.
The Mahon Tribunal was a statutory tribunal of inquiry, which was established in 1997 to inquire into certain planning matters and payments. Its final report was published in 2012.
The introduction of a new offence of ‘trading in influence’ is intended to give effect to a recommendation of the Council of Europe Group of States Against Corruption. This offence covers both the giving and acceptance of a bribe, to or by, a person who may exert an improper influence over an act of an official. The Bill also contains a range of other new offences based on recommendations of the Mahon Tribunal. These new offences include an offence of the use by an Irish official of confidential information obtained in the course of his or her office for the purposes of corruptly obtaining a gift, consideration or advantage. Another new offence is the giving of a gift, consideration or advantage to another person where the giver knows, or ought to have known, that it will be used to facilitate corruption.
Presumptions of Corruption
The Bill contains presumptions of corruption, in proceedings against a person for corruption offences, in certain instances. This includes where a person makes a payment to an official, or a “connected person” of that official, and that person has an interest in the discharge by the official of certain specified functions, including the awarding of a contract, tender, permit or passport. A "connected person" would be a close relative or a business connection. Many of these presumptions existed under previous legislation, but the Bill extends them to include gifts or advantages given or accepted by "connected persons", which was a recommendation of the Mahon Tribunal. The Bill provides that the definition of "connected person" may be extended to include a class of persons prescribed by the Minister on the basis of a heightened risk that they may be involved in corruption arising from their close relationship with officials.
Penalties for persons convicted on indictment for certain corruption offences include up to ten years’ imprisonment and unlimited fines. Courts can also remove Irish officials from public office upon conviction of such offences. This power to forfeit offices, positions or employment of an Irish official derives from Article 30 of the United Nations Convention Against Corruption. It should be noted, however, that there is an exception from this forfeiture of office penalty for certain offices, including a member of the Dáil or Seanad. The Government has explained that this is mainly due to the procedural requirements for such a removal contained in the constitution or legislation. Nonetheless, these exclusions will arguably weaken the effect of this feature of the Bill in practice.
The offences set out in the Bill involve, in almost all cases, acts or omissions involving “officials”. The definition of “official” is broad and includes not only members of the Dáil, Seanad and judges, but also officers, directors, employees or members of Irish public bodies such as the HSE and An Garda Síochána, as well as a range of other categories of individuals. Another important feature of the Bill is the extension of the definition of the term “corruptly”. The term "corruptly" is central to, and features in, the definition of most offences under the Bill. The definition of the term "corruptly" is non-exhaustive, thereby giving scope to extend the definition of the term over time. Of course, this could result in the courts being required to consider the parameters of the meaning of the term in the future, thus giving rise to uncertainty and, potentially, inconsistencies, in the future.
The Bill introduces a new strict liability offence making corporations liable for the actions of directors, managers, employees or agents who commit an offence for the benefit of the corporation, unless the corporation can demonstrate that it took all reasonable measures and exercised due diligence to avoid the commission of an offence. This is an important feature of the Bill and is likely to result in an increased focus on the part of corporations towards having formal, internal anti-corruption policies in place; a feature which is commonplace in the UK, where anti-corruption legislation has been significantly more developed than it is in Ireland.
The Bill is expected to become law towards the end of 2018.