Bribery and Anti-Corruption Legislation in Ireland and the Bribery Act 2010 (United Kingdom), December 2011
Bribery and Anti-Corruption Legislation in Ireland
Irish anti-bribery legislation is encompassed in the Prevention of Corruption Acts 1889 to 2010. It is a complex code of interrelated statutes and amendments often containing a variety of overlapping offences with the result that prosecutions rarely occur. In the 105 years (since the 1906 Act was enacted) very little has occurred by way of enforcement of this legislation.
With the passing of the Bribery Act 2010 in the UK (1 July 2011) and with the first UK person being convicted and sentenced to a six-year prison term for fixing a speeding charge in November 2011 a renewal of interest has developed in our own anti-bribery legislation. It is unfortunate that the Irish legislature did not take the opportunity to extend the territorial reach of its 2010 Act to corrupt acts of non-Irish commercial organisations that carry on business in Ireland such as is provided for in the UK Act. One would hope, however, that given the backdrop of the UK bribery legislation and a clear shift in Irish attitudes to punishing bribery there may be a more active utilisation of the anti-bribery/corruption legislation by the public and Gardaí (Irish police force) alike in the future.
Within these above Acts are the Prevention of Corruption Act 1906 ("the 1906 Act") which has been amended by the Prevention of Corruption (Amendment) Act 2001 ("the 2001 Act") and the Prevention of Corruption (Amendment) Act 2010 ("the 2010 Act"). In addition the 2001 Act ratified three international agreements, namely:
the Convention drawn up on the basis of Article K3(2)(c) of the Treaty of the European Union on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, done at Brussels May 26, 1997;
the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, drawn up under the auspices of the OECD and adopted at Paris on November 21, 1997; and
the Criminal Law Convention on Corruption, drawn up under the auspices of the Council of Europe and done at Strasbourg on January 27, 1999.
Section 2 of the 2001 Act, which is the main provision in the Act, completely replaces Section 1 of the 1906 Act. Section 1(2) as inserted by Section 2 states that:
"A person who:
(a) corruptly gives or agrees to give; or
(b) corruptly offers, any gift or consideration or advantage1 to an agent or any other person, whether for the benefit of that agent, person or another person, as an inducement to, or reward for, or otherwise on account of, the agent doing any act or making any omission in relation to his office or position or his or her principal's affairs or business shall be guilty of an offence."
The offence under Section 1 of the 1906 Act (as amended) can be committed by persons in their capacity as private individuals, bodies corporate2 or by senior officers of a company who are deemed to be vicariously liable for the acts of that company (see further below).
Section 2 of the 2010 Act defines acting "corruptly" as including "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 any other means".
Section 1(4)(b) provides that persons found guilty of an offence under Section 1(2) of the 1906 Act shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding ten years or to both.
Offences under Section 1(2) of the 1906 Act are punishable on summary conviction by a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both, or on conviction on indictment by a fine or to imprisonment for a term not exceeding ten years or both.
Section 7 of the 2001 Act amends the legislation to cover corruption occurring outside the State. Section 7(1) states:
"Subject to subsection (2) of this Section, where a person does outside the State an act that, if done in the State would constitute an offence under Section 1 (inserted by Section 2 of this Act) of the Act of 1906, he or she shall be guilty of an offence and he or she shall be liable on conviction to the penalty to which he or she would have been liable if he or she had done the act in the State."
Section 7 therefore extends the jurisdiction of the Irish Courts extra-territorially to corruption abroad but this is qualified by Section 7(2) so that it only applies where the person concerned is:
an Irish citizen; an individual who is ordinarily resident in the State; a company registered under the Companies Acts; any other body corporate established under a law of the State; or a relevant agent in any case where the relevant agent does not fall within any of paragraphs (a) to (d). A "relevant agent" is defined as a person referred to in Section 1(5)(b) of the 2001 Act (as amended). In Section 1(5) the definition of "agent" has been extended to apply to officeholders and officials, both national and foreign, not already covered by the Prevention of Corruption Act 1906. Section 1(5)(b)(i) includes domestic public office holders, persons occupying positions of employment in a public body, special advisers, members of local authorities and other public bodies. It also includes:
"(ii) a member of Dáil Éireann or Seanad Éireann;
(iii) a person who is a member of the European Parliament by virtue of the European Parliament Elections Act 1997;
(iv) an Attorney General (who is not a member of Dáil Éireann or Seanad Éireann);
(v) the Comptroller and Auditor General;
(vi) the Director of Public Prosecutions;
(vii) a judge of a court in the State; and
(viii) any other person employed by or acting on behalf of the public administration of the State."
The legislation now provides for nationality-based jurisdiction which criminalises acts committed outside the State by public officials or individuals provided the acts would constitute an offence had they been committed within the State. However, unlike the approach recently adopted in the UK under the Bribery Act 2010, the 2010 Act does not extend its territorial reach to the corrupt acts of non-Irish commercial organisations which carry on part of their business in Ireland.
Section 4 of the 2001 Act introduced a presumption of corruption. In the case of criminal proceedings against public officials, Section 4 provides that:
"any gift, consideration, or advantage given to or received by a public official, by a person who has an interest in the discharge by the domestic public official of certain specified functions, shall be presumed to have been given or received corruptly".
Section 8 of the 2001 Act states that a public official who does any act in relation to his or her office or position for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person, shall be guilty of an offence. Offences under Section 8 of the 2001 Act are punishable by a fine not exceeding €3,000 or a term of imprisonment not exceeding 12 months or both on summary conviction, or an unlimited fine or a term of imprisonment not exceeding ten years or both on conviction on indictment.
A new Section 8A is inserted into the 2001 Act by Section 4 of the 2010 Act in which special protection for whistleblowers is introduced. Employers are also prevented from penalising employees who have reported, or intend to report, corruption offences. The new legislation sets out a redress procedure for...
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