Answer ... 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.
Answer ... 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.
Answer ... 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.
Answer ... 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 , which involved a constitutional challenge to a provision analogous to Section 19.
Answer ... 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.