Dual Criminality in the Corruption Offences Act 2018: A Necessary Requirement or a Hindrance?
Author | Hansi Fischer-Kerrane |
Position | BCL (NUI Galway), LL.M (University of Amsterdam), BL Candidate (The Honorable Society of the King's Inns) |
Pages | 123-150 |
© 2019 Hansi Fischer-Kerrane and Dublin University Law Society
DUAL CRIMINALITY IN THE CORRUPTION
OFFENCES ACT 2018: A NECESSARY
REQUIREMENT OR A HINDRANCE?
HANSI FISCHER-KERRANE
Introduction
On 30 July 2018 the Criminal Justice (Corruption Offences) Act 2018
entered into force.
1
The Act creates a number of offences with respect to
corruption and trading in influence and applies to both natural persons and
corporations. The Corruption Offences Act applies extraterritorially, but
with the qualification that the conduct must also be an offence in the place
where it was committed—this is known as dual or double criminality. This
paper will argue that the inclusion of a dual criminality requirement was not
required under international law, and that it will hinder the ability of the
Corruption Offences Act to prevent the practice of corruption by Irish
nationals, citizens or Irish corporations in other jurisdictions. Furthermore,
the inclusion of a dual criminality requirement has opened Ireland up to the
likelihood of opprobrium from the Organisation for Economic Co-operation
and Development (OECD) Working Group on Bribery in International
Business Transactions,
2
which has shown itself to be willing to publicly
criticise States that include a dual criminality provision in their domestic
legislation on corruption or bribery.
Section I of this paper sets out the key provisions of the Corruption
Offences Act, with a particular emphasis on the extraterritorial element of
the Act. Section II then analyses why the Oireachtas felt the need to include
a dual criminality requirement in the legislation. From there, an analysis of
dual criminality in international law and domestic law is provided – Section
III sets out the various principles of extraterritorial jurisdiction under
international law, Section IV analyses whether there is any requirement of
dual criminality in international law, and Section V examines the practice in
Ireland with respect to extraterritorial jurisdiction. Section VI then discusses
whether dual criminality is something States should be including in their
BCL (NUI Galway), LL.M (University of Amsterdam), BL Candidate (The Honorable
Society of the King’s Inns).
1
Hereinafter ‘the Corruption Offences Act.’ The Act was commenced by Criminal Justice
(Corruption Offences) Act 2018 (Commencement Order), SI 298/2018.
2
Hereinafter ‘the OECD Working Group.’
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domestic legislation with respect to certain offences. Section VII concludes
by considering the role of dual criminality in relation to corruption.
I. The Criminal Justice (Corruption Offences) Act 2018
The aims of the Corruption Offences Act were set out in the explanatory
memorandum to the Criminal Justice (Corruption Offences) Bill.
3
These are:
to provide a single Act which will repeal and replace existing anti-corruption
legislation,
4
to give effect to recommendations of the Mahon Tribunal,
5
and
to bring Ireland into line with its obligations under a range of international
treaties.
6
Part 3 of the Corruption Offences Act deals with corruption occurring
partly inside or outside the State, and it is this Part which is the focus of this
article.
7
Section 11 of the Act relates to instances where one or more of the
3
Explanatory Memorandum to the Criminal Justice (Corruption Offences) Bill 2017.
4
The Act repeals the Public Bodies Corrupt Practices Act 1889; Prevention of Corruption Act
1906; Prevention of Corruption Act 1916; Ethics in Public Office Act 1995, s 38; Prevention
of Corruption (Amendment) Act 2001; Proceeds of Crime (Amendment) Act 2005, s 23; and
the Prevention of Corruption (Amendment) Act 2010.
5
The recommendations of the Mahon Tribunal which were incorporated into the Act are:
making it 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 (s 7(2)); a new offence of giving a gift, consideration or
advantage to another person, where the giver knows or ought reasonably to know that it will be
used to facilitate the commission of an offence under the Act (s 8); the extending of
presumptions of corrupt gift, consideration or advantage to gifts or advantages given to or
received by or for the benefit of a ‘connected person’ of an ‘official’ (s 14); and the broadening
of the presumption of corrupt donation contained in s 3 of the Prevention of Corruption
(Amendment) Act 2001 (s 15). See Explanatory Memorandum to the Criminal Justice
(Corruption Offences) Bill 2017.
6
These treaties are: Convention drawn up on the basis of Article K (3)(2)(c) of the Treaty on
European Union on the fight against corruption involving officials of the European
Communities or officials of Member States of the European Union, adopted in Brussels on 26
May 1997 and adopted by Ireland on 11 March 2003; OECD Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions, adopted in Paris on 21
November 1997 and ratified by Ireland on 22 September 2003; Council of Europe Criminal
Law Convention on Corruption, adopted in Strasbourg on 27 January 1999 and ratified by
Ireland on 3 October 2003; EU Council Framework Decision 2003/568/JHA of 22 July 2003
on combating corruption in the private sector; Additional Protocol to the Council of Europe
Criminal Law Convention on Corruption, adopted in Strasbourg on 15 May 2005 and ratified
by Ireland on 11 July 2005; United Nations Convention Against Corruption, adopted in New
York on 31 October 2003 and ratified by Ireland on 9 November 2011.
7
While the substantive provisions of the Corruption Offences Act are not directly relevant to
this article, it is still apposite to briefly outline their content: Part 2 sets out the various offences
relating to corruption punishable under the Act, namely active and passive corruption (ie the
offering or accepting of a bribe or gift) (s 5); active and passive trading in influence (s 6);
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