The long-awaited Criminal Justice (Corruption Offences) Bill 2017 (here) has been passed by the Dáil and is now before the Seanad. A number of significant amendments have been made to the Bill, since its publication in October 2017. However, the new "failure to supervise" offence has survived intact.
The Bill is a central piece of the government's suite of anti-corruption measures which specifically target white-collar crime. It consolidates anti-corruption Acts from as far back as 1889 up to 2010 as well as introducing a range of new offences which modernise the Irish anti-corruption code. The Bill will also amend other legislation relevant to corruption, including the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and the Criminal Justice Act 1994. The Bill has been the subject of a number of amendments in its passage through the Dáil as follows.
Definition of "Irish Official" – this definition has been expanded to make it explicit that members of a local authority fall within its ambit. This is relevant in the context of certain offences under the Act such as corruption in relation to an office, employment, position or business. Concerns were raised earlier in the legislative process about a lack of clarity here.
Passive corruption – this offence has been expanded to include the act of requesting a gift, consideration or advantage. This is to give partial effect to the PIF Directive1 which deals with the fight against fraud to the European Union's financial interests and which requires Ireland to criminalise such behaviour. The same change is being made to the passive trading in influence offence.
Money-laundering – the dual criminality requirement is to be removed from the 2010 Act, in respect of bribery of a foreign official as a predicate to money laundering where an offence of bribery took place abroad. There will now be no requirement that the conduct is an offence in the place where it occurs. This follows a recommendation made by the OECD.
Asset confiscation – the definition of "realisable property" in the 1994 Act is to be amended. That definition relates to property that is suspected to be linked to criminal activity. Such property can be frozen in contemplation of criminal proceedings to ensure that the person who holds the property cannot dispose of it until the conclusion of those proceedings. This is done in anticipation of a confiscation order being made once a conviction is secured. Now, property which is forfeited under the new Bill will be excluded from the definition of "realisable property" as forfeiture here is a criminal penalty and should be excluded from the civil freezing regime under the 1994 Act. In addition, forfeited property will be excluded from the satisfaction of a confiscation order under that Act.
Repeal of existing offences – certain corruption offences from the Criminal Justice (Theft and Fraud Offences) Act 2001 have been added to the list of those set for repeal. The OECD had previously criticised Ireland for its spread of slightly varying corruption offences across the statute book. The government has indicated that in the wake of the PIF Directive these offences can now be safely repealed. This will provide greater consistency in the Irish legislation.
Penalties – the forfeiture provisions included in the Bill as initiated provided that if a gift had been corruptly offered or there had been an agreement to give it, then it could be seized notwithstanding that it had not been handed over. This has now been removed as it was recognised that it would be impossible in practice to order the forfeiture of something which had not actually been received.
Comment and Next Steps
As set out in our previous briefings, one of the most significant changes contained in the Bill relates to the introduction of a new requirement for corporate entities to take reasonable measures to ensure that employees and other persons do not engage in bribery and corruption, or face criminal consequences. This provision has not been amended during the Bill's passage through the Dáil.
The Irish government aims to have the Bill enacted by June, when Ireland will be subject to a number of international reporting processes on preventing and tackling corruption. Consequently, corporate entities that have not yet put in place an effective anti-bribery and corruption compliance programme should start considering how to devise and implement one in anticipation of the new requirements.
1 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law.
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