Anti-Corruption & Bribery

The Criminal Justice (Corruption Offences) Act 2018 is the principal statutory source of anti-bribery and corruption legislation in Ireland. The key corruption and bribery offences are provided for in Part 2 of the Corruption Act and include the following.

Active and passive corruption: It is an offence to, directly or indirectly, corruptly offer, give, agree to give, request, accept, obtain or agree to accept a gift, consideration or advantage as an inducement to, or reward for, or otherwise on account of, doing an act in relation to one’s office, employment, position or business.

‘Corruptly’ is broadly defined under the 2018 act and includes acting with an improper purpose personally or by influencing another person, whether:

• by means of making a false or misleading statement;
• by means of withholding, concealing, altering or destroying a document or other information; or
• by other means.

Active and passing trading in influence: It is an offence to, directly or indirectly, corruptly offer, give or agree to give a gift, consideration or advantage in order to induce another person to exert an improper influence over an act of an official in relation to the office, employment, position or business of that official.

Similarly, it is an offence to, directly or indirectly, corruptly request, accept, obtain or agree to accept for one’s self or for any other person a gift, consideration or advantage on account of a person promising or asserting the ability to improperly influence an official to do an act in relation to his or her office, employment, position or business.

Corruption in relation to office, employment, position or business: An Irish official who, directly or indirectly, does an act in relation to his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself, or for any other person, will be guilty of an offence.

It is also an offence for an Irish official to use confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself, or for any other person.

‘Irish official’ is broadly defined and includes Irish members of both the Irish and EU Parliament, government officials, the judiciary, jury members, arbitrators, officers, directors and employees of Irish public bodies and persons remunerated by the Irish government or employed by or acting for or on behalf of the public administration of the state.

Giving a gift, consideration or advantage that may be used to facilitate an offence under the Corruption Act: It is an offence to give a gift, consideration or advantage to another person where the person knows, or ought reasonably to know, that the gift, consideration or advantage, or a part thereof, will be used to facilitate the commission of an offence under the Corruption Act.

Creating or using a false document: It is an offence to, directly or indirectly, create or use a document that the person knows or believes to contain a statement which is false or misleading in a material particular, with the intention of inducing another person to do an act in relation to his or her office, employment, position or business to the prejudice of the last-mentioned person or another person.

Intimidation: It is an offence to, directly or indirectly, threaten harm 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, employment, position or business.

Offences under other legislation: Other relevant legislation in Ireland includes the following:

• The Ethics in Public Office Act 1995 (as amended by the Standards in Public Office Act 2001) (together, the ‘Ethics Acts’) obliges Irish public office holders and public servants to report and surrender gifts and payments above €650. The Ethics Acts also require that designated public servants furnish a statement in writing, declaring their financial interests. All office holders and public servants are expected to adhere to the fundamental principle that an offer of gifts, hospitality or services should not be accepted where it would, or might appear to, place him or her under an obligation.
• The Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2018 transposed most of the provisions of the fourth EU Anti-Money Laundering Directive into Irish law. The act introduced a wide range of reforms, including:
• • the expansion of the definition of persons considered to be beneficial owners of bodies corporate, trusts and partnerships;
  • enhanced customer due diligence requirements for designated persons;
  • widening of the definition of politically exposed persons to include individuals residing inside the state; and
  • the tightening of exemptions relating to certain electronic money products.
• The Regulation of Lobbying Act 2015 regulates lobbying in Ireland. Among other things, the act provides for the establishment and maintenance of a register of persons carrying on lobbying activities and a code of conduct relating to the carrying on of lobbying activities; and imposes restrictions on involvement in lobbying by certain former designated public officials. The act also creates offences for breach of the legislation, to include carry on lobbying activities without being registered to do so.

Ireland has signed and ratified the following international anti-corruption conventions:

• the EU Convention on the Protection of the European Communities Financial Interests (and Protocols);
• the Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Officials in International Business Transactions;
• the Council of Europe Criminal Law Convention on Corruption;
• the Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union;
• ƒähe Additional Protocol to the Council of Europe Criminal Law Convention on Corruption;
• the United Nations Convention against Transnational Organised Crime; and
• the United Nations Convention against Corruption.

The government has not yet published guidance on compliance with anti-corruption and bribery legislation in Ireland. However, a review group chaired by the former director of public prosecutions, James Hamilton, has recently been appointed to carry out a review of anti-fraud and anti-corruption structures and procedures. The review is aimed at assessing the extent to which various state bodies involved in the prevention, detection, investigation and prosecution of fraud and corruption are working effectively together, and identifying any gaps or impediments in this regard. The review group is due to report its findings and recommendations to the minister for justice and equality by Summer 2019. It is hoped that as part of this review, recommendations will be made in relation to the publication of guidance on compliance with anti-corruption legislation.

The Standards in Public Office Commission publishes guidelines in accordance with the Ethics Acts. The guidelines assist in informing office holders and prescribed public servants (generally middle and senior ranking in both the civil service and public bodies) of their obligations under the legislation. These are available on the Standards in Public Office Commission website (www.sipo.ie/en/).

The Garda National Economic Crime Bureau is the primary body tasked with investigating bribery and corruption in Ireland. The body tasked with the prosecution of any such bribery and corruption offences is the Office of the Director of Public Prosecutions.

The Office of the Director of Corporate Enforcement (ODCE) also monitors and prosecutes violations of company law; however, this looks set to change. The Companies (Corporate Enforcement Authority) Bill 2018 is currently being considered by the Irish government. Should the legislation be enacted, the Corporate Enforcement Authority will replace the ODCE and be established as an independent statutory agency. The authority will assume a greater role in relation to the monitoring of anti-bribery and anti-corruption measures, and will play a significant part in the investigation of corruption offences.

To date, investigations into allegations of bribery or corruption in Ireland have been uncommon and there have been no prosecutions under the Corruption Act. However, this trend appears to be slowly changing. The Garda National Economic Crime Bureau now has a team dedicated to the investigation of serious and complex economic crimes, to include the investigation of all cases of bribery and corruption; and one would anticipate that, following the government’s review of anti-fraud anti-corruption measures as referred to in question 1.3, there will be a renewed focus on the investigation of allegations of bribery and corruption and prosecution of such offences.

The Gardaí Síochána (Irish police force) and the Department of Foreign Affairs have raised concerns around their ability to sufficiently enforce corruption offences committed abroad. The basis for these concerns emanates from the provision in the Corruption Act for ‘dual criminality’ in respect of certain offences occurring overseas. In order to prosecute certain offences committed outside of Ireland, the relevant act or offence under Irish law must also constitute an offence in the country in which it was done and certain connections to Ireland must be established. The challenge for the authorities lies in the investigation and obtaining of sufficient evidence in respect of such offences such as to ground a prosecution in respect of same.

‘Public corruption’ and ‘bribery of a public official’ are not defined in the Corruption Act. However, certain offences under the act relate specifically to public officials – for example, an Irish official who directly or indirectly does an act in relation to his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself, or for any other person, will be guilty of an offence.

It is also an offence for an Irish official to use confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself, or for any other person.

‘Public official’ is not defined in the Corruption Act. The term ‘Irish official’, as provided for in the Corruption Act, covers a broad spectrum of persons and includes Irish members of both the Irish and EU Parliament, government officials, the judiciary, jury members, arbitrators, officers, directors and employees of Irish public bodies and persons remunerated by the Irish government or employed by or acting for or on behalf of the public administration of the state.

‘Foreign official’ is also defined and includes members of the government or parliament of foreign states, members of the European Parliament, Commission and Court of Auditors, foreign public prosecutors, foreign members of the judiciary, foreign arbitrators, foreign jury members, foreign employees of the state and foreign employees of organisations established by international agreements.

Neither ‘private corruption’ nor ‘bribery in the private sector’ is defined in the Corruption Act; however, the offences set out in Part 2 of the act apply equally to bribery in the private sector and the public sector.

A ‘bribe’ is not defined in the Corruption Act; however, the act makes it an offence to corruptly give, agree to give, request, accept, obtain or agree to accept a gift, consideration or advantage which, when given corruptly, may be more commonly referred to as a bribe.

Please see question 1.1. The criminal offences provided for in the Corruption Act include:

• active and passive corruption;
• active and passive trading in influence;
• corruption by an Irish official in relation to his or her office, employment, position or business;
• the giving of a gift, consideration or advantage that may be used to facilitate an offence under the Corruption Act;
• creation or use of false documents; and
• intimidation.

Yes, both individuals and companies can be prosecuted under the Corruption Act.

Pursuant to Section 18(3) of the Corruption Act, where an offence under the act is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, shall be guilty of an offence.

The Corruption Act provides for the concept of ‘dual criminality’. In that regard, acts committed outside Ireland may be prosecuted if certain connections to Ireland can be established – for example, if the offence involved the corruption of an Irish official or the person who carried out the corrupt act is an Irish citizen.

Yes. Section 11 of the Corruption Act provides that a person may be tried in Ireland for any offence under the Corruption Act if any one or more of the acts alleged to constitute an offence were committed in Ireland, or on an Irish ship or an aircraft registered in Ireland, notwithstanding that the other acts alleged to constitute an offence were committed outside the state.

Pursuant to Section 12 of the Corruption Act, Irish citizens, Irish officials acting in their capacity as Irish officials, individuals with their principal residence in Ireland for the 12 months preceding the act and companies and corporate bodies registered in Ireland will be liable under the Corruption Act for acts committed outside of Ireland where those actions would otherwise constitute certain offences under the Corruption Act if committed in Ireland. The relevant offences are:

• active and passive corruption;
• active and passive trading in influence;
• corruption by an Irish official in relation to his or her office, employment, position or business;
• the giving of a gift, consideration or advantage that may be used to facilitate an offence under the Corruption Act; and
• creation of use of a false financial document.

The scope of this extraterritorial effect is somewhat limited by the requirement that the act committed also be an offence in the jurisdiction in which it was carried out.

Corporate hospitality – such as meals, match tickets and other entertainment – falls within the ordinary meaning of ‘gift, consideration or advantage’. However, such gifts or entertainment do not necessarily fall within the scope of the Corruption Act.

In order for the provision of corporate hospitality to amount to an offence, it must satisfy the criteria under the Corruption Act. The act does not criminalise corporate hospitality that is offered simply to maintain good business relations.

In accordance with the Ethics Acts, all office holders and public servants are expected to adhere to the fundamental principle that an offer of gifts, hospitality or services should not be accepted where it would, or might appear to, place them under an obligation. Generally, small token gifts such as calendars, diaries or pens of small value are acceptable, provided that there is no intent to influence the government official. Gifts of money or other property exceeding €650 given to an office holder or the spouse or child of an office holder by virtue of his or her office will be deemed to be gifts to the state and must be surrendered.

There is no distinction in Irish law between facilitation payments and other types of corrupt payments. Therefore, should a payment fall within the scope of those envisaged by the Corruption Act, the individuals or corporates involved may be guilty of an offence.

Part 2 of the Corruption Act includes offences in respect of corrupt gifts, consideration, advantages and inducements made directly and indirectly. Agents and facilitating parties can therefore be held equally liable for offences committed under the Corruption Act.

A body corporate will be guilty of an offence under the Corruption Act if the offence is committed by the following parties with the intention of obtaining or retaining either business for the body corporate or an advantage in the conduct of business for the body corporate:

• a director, manager, secretary or other officer;
• a person purporting to act in that capacity;
• a shadow director; or
• an employee, agent or subsidiary.

It is 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.

Yes - as per the above, a body corporate may be guilty of an offence under the Corruption Act if an offence is committed by a subsidiary with the intention of obtaining or retaining either business for the body corporate or an advantage in the conduct of business for the body corporate.

This will depend on the terms of the merger or acquisition; but generally speaking, if the entity responsible for the bribery ceases to exist post-merger, the successor company will become liable for the acts of the legacy company and its employees and agents (who themselves may also be held personally liable).

The implementation of an anti-corruption compliance programme is not a regulatory requirement. However, it would be considered best practice to have such a programme in place to minimise the risk of corruption or bribery occurring, and to ensure that all employees within the organisation and others with whom the company does business are aware of the company’s approach to anti-bribery and anti-corruption. A robust anti-corruption programme may also assist in the defence of any investigation or prosecution taken against a company for breach of anti-corruption legislation.

In order to create a robust anti-bribery and anti-corruption environment, companies should consider taking the following steps:

• Put in place clear and comprehensive anti-corruption policies and/or review existing policies;
• Ensure that all personnel receive training on these policies, and are aware of their obligations pursuant to the policies and how to recognise and deal with suspected bribery or corruption;
• Discuss and review the effectiveness of these policies and procedures at the appropriate level within the organisation (eg, compliance or board level);
• Appoint a compliance manager with day-to-day responsibility for implementing the policies, monitoring their use and effectiveness and updating them as necessary;
• Keep a written record of any gifts or entertainment given or received in order to ensure transparency; and
• Communicate the organisation’s zero-tolerance approach on bribery and corruption to vendors, third-party service providers and other organisations with which they do business.

All companies operating in Ireland are required to keep accurate corporate books and records in accordance with Sections 281 to 285 of the Companies Act.

The books and records of a company must:

• correctly record and explain the transactions of the company;
• enable the assets, liabilities, financial position and profits or losses of the company to be determined with reasonable accuracy at any point in time; and
• enable the directors to ensure that any financial statements of the company and any directors’ reports required to be prepared under the Companies Act comply with the Corruption Act’s requirements and international accounting standards, and can be audited.

Section 380 of the Companies Act requires that Irish companies appoint an external auditor to examine the company’s accounts and prepare a report that accurately reflects the company’s financial position.

Section 387 of the Companies Act gives auditors the right to seek access to company documents and compel information and explanations from company officers and employees.

Failure to comply with these requirements results in the commission of an offence. In addition, a director of a company who fails to take all reasonable steps to secure compliance by the company with these requirements, or who has by his or her own intentional act been the cause of any default by the company under any of them, may be held criminally liable.

In addition, Section 877 of the Companies Act makes it an offence for an officer of a company to destroy, mutilate or falsify any book or documents affecting or relating to the property or affairs of the company.

Section 10 of the Criminal Justice (Theft and Fraud Offences) Act 2001 also provides for the offence of false accounting where a person who, with the intention of making a gain for himself or herself or another, or of causing loss to another, provides false information relating to documents made or required for any accounting propose.

Section 19 of the Criminal Justice Act 2011 makes it an offence to withhold information from An Garda Siochána (the Irish police) which one knows or believes might be of material assistance in preventing the commission by any other person of a relevant offence or in securing the apprehension, prosecution or conviction of any other person for a relevant offence. The relevant offences are set out in Schedule 1 to the 2011 act (as amended) and include certain corruption offences. Depending on the circumstances of the financial irregularities or potential anti-corruption violations, a company may therefore be obliged to report same to An Garda Siochána – for example, if same are conducted by an employee. However, Section 19 does not operate to compel a person to disclose information which might incriminate himself or herself; the Irish Supreme Court has recently provided clarity in this regard in Sweeney v Ireland [2019], which involved a constitutional challenge to a provision analogous to Section 19.

Failure to implement an adequate anti-corruption programme does not constitute a regulatory and/or criminal violation in Ireland. However, the implementation of such a programme is considered best practice and may assist in defending any charge that may be brought against a body corporate by demonstrating (at least in part) that the body corporate took all reasonable steps and exercised all due diligence to avoid commission of the offence.

In Ireland, formal leniency agreements are not available to corporate entities in respect of a violation of anti-corruption laws. However, if a prosecution is taken by the authorities, voluntarily reporting the violation or cooperating with the investigation may be a factor in mitigation of sentence.

As set out above, it is 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. While not a defence in itself, having an adequate anti-corruption programme in place may assist a body corporate in proving that it took reasonable steps to prevent the commission of the offence. In the event of such a prosecution and reliance on the foregoing defence, the company’s anti-corruption policies and procedures are likely to come under intense scrutiny.

Other defences which may be relied upon by a company would be to demonstrate that any payment, gift, consideration or advantage in issue was not given corruptly and was given in the normal course of business.

In Ireland, the courts have exclusive jurisdiction in relation to sentencing in criminal matters. The law does not provide for formal plea bargaining or the entering into of settlement agreements with the Office of the Director of Public Prosecutions. However, it may be possible for an accused in a criminal matter to plea to a lesser charge than that with which he or she is initially charged, which may result in a more lenient sentence. In all instances, the court retains ultimate discretion relating to sentencing.

Under the Corruption Act, on summary conviction, penalties range from a fine of up to €5,000 to imprisonment for up to 12 months and/or forfeiture of property of the value of the gift or benefit obtained in connection with the offence.

On conviction on indictment, penalties range from an unlimited fine to imprisonment for up to 10 years and/or forfeiture of property of the value of the gift or benefit obtained in connection with the offence. In certain circumstances, the court may also order an Irish official to forfeit his or her office and prohibit him or her from holding office in particular Irish official positions for up to 10 years.

The offences contained under the Corruption Act are ‘hybrid offences’, meaning that the Office of the Director of Public Prosecutions can elect for either summary disposal (which carries a six-month statutory time limit) or trial on indictment of the offence. No statute of limitations exists in respect of the commencement of proceedings in the prosecution of indictable offences, so in theory the Office of the Director of Public Prosecutions may elect to institute proceedings at any point in respect of an offence under the Corruption Act.

The Corruption Act is part of a suite of measures published by the Irish government in November 2017 aimed at enhancing corporate governance, increasing transparency and strengthening Ireland’s response to white collar crime. Other elements of the government’s package on the proposed reform on white collar crime include:

• establishing the Corporate Enforcement Authority, replacing the current Office of the Director of Corporate Enforcement (ODCE). The General Scheme of the Companies (Corporate Enforcement Authority) Bill 2018 was published on 4 December 2018; under the proposed legislation, it is envisaged that the ODCE will take the form of a commission, as opposed to its current structure as an office within the Department of Business, Enterprise and Innovation, with the intention that this will provide the organisation with more autonomy and flexibility in the investigation and prosecution of complex breaches of company law;
• piloting a Joint Agency Task Force within the Irish police force to tackle white collar crime; and
• drafting the Criminal Procedure Bill which, when enacted, is envisaged will streamline criminal procedures to enhance the efficiency of criminal trials.

In addition, in October 2018 the Irish Law Reform Commission issued a Report on Regulatory Powers and Corporate Offences. Among the recommendations were:

• that a properly resourced statutory Corporate Crime Agency be established;
• that economic regulators have the power to impose significant financial sanctions and make regulatory enforcement agreements, to include redress schemes; and
• a proposal for reform of fraud offences to address egregiously reckless risk taking.

While historically, therefore, there has been little in the way of investigating or enforcing instances of bribery and corruption in Ireland, given the increased government focus on white collar crime and the increased focus among regulators in relation to investigations and enforcement generally in Ireland, one anticipates that this is likely to change in the near term.

The implementation of robust anti-corruption compliance programmes requires a detailed due diligence exercise to be undertaken to consider not least:

• the various stakeholders within the business;
• the territories involved (ie, whether the programme must be sufficient to comply with legislative requirements across various jurisdictions);
• the potential risk factors (eg, financial controls); and
• whether any policies or procedures are currently in place.

Once this due diligence exercise is complete and the relevant information available, the emphasis must be on ensuring that an appropriate and clear and comprehensive anti-bribery and anti-corruption policy is in place, with suitable reporting structures and consequences for non-compliance. To effectively implement the policy, it is vital that all employees and stakeholders are aware of the policy, are adequately trained in relation to same and are acutely aware of their accountability under the policy. One of the key challenges faced in the implementation of an effective anti-bribery programme is in the monitoring and review of the programme, and testing should be carried out on a regular basis to determine the effectiveness of the programme and compliance with same. This will highlight any deficits in the programme by reason of, for example, changing work practices; and will ensure that any such issues are escalated and addressed at the earliest opportunity with a view to maintaining a robust anti-corruption environment and zero tolerance approach to bribery and corruption.