On 20 June 2012, the Minister for Justice published the draft scheme of the much anticipated Criminal Justice (Prevention of Corruption) Bill 2012. The draft scheme proposes to repeal the current varied sources of anti-corruption legislation in Ireland and replace it with one consolidated piece of legislation. Many of the existing provisions remain in the draft scheme but have been clarified and strengthened. The draft scheme also incorporates a number of recommendations from the recently published Mahon Tribunal report which inquired into certain planning matters and payments to politicians.
Although no formal indication has been provided as to when the draft scheme might be published as a bill, it contains a number of interesting and potentially very significant provisions.
From a business perspective, this includes the fact that Irish companies will be liable for the commission of corrupt offences by their employees and associated persons. In this context, the key message is for Irish companies to put in place anti-corruption policies and procedures as soon as possible, in order to avail of the proposed defence under the draft scheme in respect of such liability.
In a provision similar to Section 7 of the UK Bribery Act 2010, the draft scheme now provides under Head 13 that companies are liable for corruption offences of their employees, agents, subsidiaries, officers, secretaries, managers and directors, where there is an intention by those persons to obtain or retain business for the company. This now makes it easier for companies to be prosecuted for corruption, as previously common law rules of identification and attribution were necessary to determine liability for a company. The maximum penalties for offences under the draft scheme can be up to 10 years imprisonment and / or an unlimited fine. However, to date there have been no recorded prosecutions of companies under Irish anti-corruption legislation.
The draft scheme proposes the introduction of a defence for the company to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. This echoes the position under the UK Bribery Act 2010, albeit the UK defence is arguably wider as it only requires the implementation of "adequate procedures" designed to prevent corruption.
In order to rely on the proposed defence of having taken all reasonable steps and exercised all due diligence, we...