Getting The Deal Through - Anti-Corruption Regulation 2014

Author:Ms Bríd Munnelly and Carina Lawlor
Profession:Matheson
 
FREE EXCERPT

1 International anti-corruption conventions

To which international anti-corruption conventions is your country a signatory?

Ireland has signed and ratified the following international anticorruption conventions:

Council of Europe Criminal Law Convention on Corruption - entered into force on 1 February 2004; Additional Protocol to the Council of Europe Criminal Law Convention on Corruption - entered into force on 1 November 2005; UN Convention against Corruption - entered into force on 9 December 2011; OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions - entered into force on 21 November 2003; Convention of the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union - entered into force on 28 September 2005; EU Convention on the Protection of the European Communities Financial Interests (and Protocols) - entered into force on 17 October 2002; and UN Convention against Transnational Organized Crime - entered into force on 17 July 2010. Ireland signed the Council of Europe Civil Law Convention on Corruption on 4 November 1999 but has not yet ratified it.

2 Foreign and domestic bribery laws

Identify and describe your national laws and regulations prohibiting bribery of foreign public officials (foreign bribery laws) and domestic public officials (domestic bribery laws).

Anti-corruption legislation in Ireland generally prohibits bribery of both public officials and private individuals committed in Ireland and, in certain circumstances (ie, where the donor has a connection with Ireland), committed abroad. In contrast with other jurisdictions, the offences provided for under Irish legislation do not generally distinguish between the bribery of persons working in a public or private body. The only exception is the presumption of corruption, detailed below, which only applies to public officials.

Irish laws prohibiting bribery are a combination of common law and statutory law dating back to the late 19th century and are spread across a number of pieces of legislation as set out below. Draft terms of legislation were published in June 2012, which, when enacted, will replace the principal pieces of anti-corruption legislation with one consolidated piece of legislation.

Common law

At common law, the offences of bribery and attempted bribery are punishable by imprisonment or a fine, or both. It is an offence to offer an undue reward to, or receive an undue reward from, a public official in order to influence that person in the exercise of his or her duties in that office contrary to the rules of honesty and integrity.

The common law bribery and attempted bribery offences have not been judicially considered in recent times and prosecuting authorities mainly rely on the statutory law offences.

Statutory law

The three principal sources of bribery law in Ireland are:

the Public Bodies Corrupt Practices Act 1889, as amended by the Prevention of Corruption Acts 1916 and the Ethics in Public Office Act 1995 (the Public Bodies Acts); the Prevention of Corruption Act 1906, as amended by the Prevention of Corruption (Amendment) Act 2001 and the Prevention of Corruption (Amendment) Act 2010 (the Prevention of Corruption Acts); and the Ethics in Public Office Act 1995, as amended by the Standards in Public Office Act 2001 (the Ethics Act). There is a degree of overlap between the offences under the Public Bodies Acts and the Prevention of Corruption Acts.

The Public Bodies Acts

The principal offences under the Public Bodies Acts deal with corruption in Irish public office and apply in situations where a corrupt payment is being made to, or for the benefit of, an office-holder, their special adviser, a director, or an employee of an Irish public body. In these cases, it is an offence for a person to:

corruptly, give, promise or offer, solicit, receive or agree to receive, for himself, or for any other person, any gift, fee, loan, reward or advantage whatsoever as an inducement to, or reward for, one of the specified public officials above, doing or refraining from doing, anything in which the public body is concerned. The term 'corruptly' is not defined in the Public Bodies Acts.

The Prevention of Corruption Acts

The Prevention of Corruption Acts prohibit three offences, the first of which is corruptly accepting a gift. It is an offence for an agent or any other person to:

corruptly, accept, agree to accept, or agree to obtain, a gift, consideration or advantage, for himself or any other person, as an inducement, reward or on account of the agent doing any act, or making any omission, in relation to the agent's office or position, or his principal's affairs or business. The second offence is corruptly giving a gift. In this case, it is an offence for a person to:

corruptly, give, agree to give or offer, a gift, consideration or advantage, to an agent or any other 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 his principal's affairs or business. The third offence is making a false statement. A person will be guilty of an offence if they knowingly give to any agent, or an agent knowingly uses with intent to deceive his or her principal, any receipt, account or other document which contains any statement which is false or erroneous or defective in any way, and which to that person's knowledge is intended to mislead the principal.

A definition of 'corruptly' was introduced in 2011 as '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'. The phrase 'improper purpose' is not defined.

The term 'agent' is broader than the common-law understanding of agent and includes domestic and foreign nationals employed by or acting on behalf of both private and public bodies, as follows:

an employee or person acting for another; an office-holder or director in a public body or any other person employed by or acting on behalf of the public administration of the Irish state; a member of the Irish parliament or an Irish elected member of the European Parliament; the Attorney General, the Comptroller and Auditor General, and the Director of Public Prosecutions; a judge of the Irish courts; a member of government, or regional or national parliament of any other state; any member of the European Parliament, the Court of Auditors of the European Communities, or the European Commission; a public prosecutor or judge in any other state; a judge of any court established under an international agreement to which Ireland is a party; a member of an international organisation to which Ireland is a party; any person employed by or acting on behalf of the public administration of any state; or any member or person employed by an international organisation to which Ireland is not a party. The Prevention of Corruption Acts also include a discrete offence relating to corruption in office which prohibits a public official carrying out a particular act with a view to later receiving a gift, consideration or advantage for themselves or someone else. 'Public official' in this context includes only the domestic public officials set out at (b) to (e) in the definition of 'agent' above and so does not apply to foreign public officials.

As stated above, draft legislation has been published which proposes to amend the Prevention of Corruption Acts. In its current draft, the new legislation will retain the three offences set out above but will add an additional offence of corruptly threatening harm to a person with the intention of influencing any person to do or omit to do something in relation to his office or employment. This is considered in more detail in 'Update and trends'.

The Ethics Act

The Ethics Act places obligations on Irish public office-holders and other senior members of the Irish public service, to report and surrender gifts and payments above e650. The Ethics Act aims to combat corruption in office by requiring public declarations of financial interests, as well as prohibiting the receipt of gifts, whether or not they are given by the donor with the intention of procuring a certain result or course of action.

Other legislation

The Criminal Justice (Theft and Fraud Offences) Act 2001 (the Theft and Fraud Act) enshrines in Irish law the offences of active and passive corruption as set out in the First Protocol to the EU Convention of the Protection of European Communities Financial Interests. While in many ways similar to the offences outlined above, these apply solely to active and passive corruption of officials of the European Communities or member states that damages the EU's financial interests.

Presumptions of corruption

Various presumptions of corruption arise under the Public Bodies Acts, the Prevention of...

To continue reading

REQUEST YOUR TRIAL