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);