The Criminal Justice (Corruption Offences) Act 2018 (the 2018 Act) is the main piece of law in Ireland that regulates bribery and corruption. The Public Bodies Corrupt Practices Act of 1889 and the Prevention of Corruption Acts 1906-2010 were abolished by the 2018 Act, which took effect on July 30, 2018. Certain offenses are also governed by the Criminal Justice Act of 2011 (the 2011 Act). The Lobbying Regulation Act of 2015 establishes rules for designated public officials and controls the lobbying process in order to make the process more transparent and reduce the possibility of corruption.
The Ethics in Public Office Act 1995, as amended (the 1995 Act) and the Standards in Public Office Act 2001 (the 2001 Act) (together referred to as the Ethics Acts) control government officials’ and public servants’ behavior.
When people work for the National Asset Management Agency (NAMA) or have their obligations absorbed by NAMA, the National Asset Management Agency Act 2009 applies.
The applicable Code of Conduct will likewise apply to civil servants.
Any person who corruptly offers, gives, or accepts a “gift, consideration, or advantage” as an incentive to, reward for, or on account of any person executing an act in relation to their office, employment, position, or business is in violation of the 2018 Act.
A broad definition of “corruptly” includes acting with an unlawful intention directly or by influencing another person, whether through making a false or misleading statement, withholding, hiding, modifying, or destroying a document or other information, or by other means.
The following are the main infractions under the 2018 Act:
Corruption in regard to office, employment, position, or business; delivering a gift, consideration, or advantage that could be used to enable an offense; manufacturing or utilizing a fraudulent document; and intimidation are all examples of active and passive corruption.
A person who fails to disclose, as soon as practicable, information that might be of material assistance in preventing the commission by any other person of certain white collar offenses, including corruption, or securing the apprehension, prosecution, or conviction of any other person for such an offense commits an offense under the 2011 Act.
When a person executing tasks for the National Asset Management Agency (NAMA) receives a gift, benefit, or advantage from a person whose debts have been taken by NAMA, there is a presumption of corruption under the National Asset Management Agency Act 2009.
Bribery and attempted bribery are still illegal under common law. Since the passage of the 2018 Act, prosecution authorities have tended to rely on statutory violations.
The 2018 Act has extraterritorial application in cases where the act in question would be illegal if done within the state. In these cases, regardless of whether the activity took place outside of the state, the person or company can be held accountable and prosecuted in the state under sections 11, 12 and 13 of the 2018 Act if they fit into one of the following categories:
Citizens of Ireland, persons who are habitually living in Ireland, corporations registered under the Irish Companies Acts, any other body corporate constituted under Irish law, and some specific public officials are all eligible.
Corruption offenses can be committed by both individuals and businesses. Public officials, private individuals, business organisations, and foreign public authorities are all included.
Section 18 of the Criminal Code imposes individual criminal culpability on senior officers of a corporation for actions committed with their consent, connivance, or deliberate neglect.
A parent corporation may be liable under section 18 of the 2018 Act if the violation is committed by a subsidiary with the goal of securing or keeping business or gaining an advantage for the parent firm.
Any person who corruptly gives or accepts a “gift, consideration, or advantage” as an enticement to, reward for, or on account of any person executing an act in relation to their office, job, position, or business is guilty of a crime. Because Irish law does not discriminate between facilitation payments and corrupt payments, making a “facilitation payment” is a crime if it meets the elements for a corrupt payment.
If a political or charity donation is provided or received with the goal of influencing or rewarding someone for doing inappropriately, it may be termed a bribe.
The donation shall be deemed to be corrupt if it is made to a member of the Dáil Éireann (Lower House of the Irish Parliament), Seanad Éireann (Upper House of the Irish Parliament), European Parliament, or local authority.
The donor had an interest in the person concerned doing an act in relation to their position; the person concerned failed to either: return the donation; or notify the Standards in Public Office Commission (or the equivalent local authority body); and the donation was in excess of a prescribed amount.
On the balance of probabilities, this presupposition can be overturned by evidence to the opposite.
The 2018 Act makes no distinction between the sort or amount of corporate hospitality supplied or accepted, and it does not directly address it. The 2018 Act, on the other hand, focuses on the gift’s character and intent.
If corporate hospitality is given or received with the goal of persuading or rewarding someone for acting inappropriately, it may be called a bribe.
The Ethics Acts apply to public authorities as well. A public official must disclose and perhaps relinquish any gift or hospitality over an aggregate threshold amount of EUR 650 over a specific period, with few exceptions (generally an annual period).
Individual public bodies may have their own gift-accepting policies, which should be investigated.
Under section 18 of the 2018 Act, a corporate body may have a statutory defense if it can show that it took all reasonable steps and performed all due diligence to avoid committing the violation. There is no guidance on what constitutes “reasonable steps” or “due diligence” – however, the court is likely to look to the UK equivalent guidance, which states that the adequacy of a commercial organization’s procedures will be assessed using six key compliance principles, including risk assessment, proportionate procedures, top-level commitment, due diligence, communication, and tr. It’s worth noting, however, that the UK comparable legislation uses the phrase “sufficient procedures” rather than the more stringent Irish threshold of “all reasonable steps.”
If the threats made against them or another person were of death or serious damage, and were sufficiently serious to overcome the powers of resistance of an ordinary person, the common law defense of duress or necessity may be offered to a person convicted of bribery violations.
The major investigative body is the national police force, An Garda Sochána, which has a specialty division for sophisticated fraud cases called the National Economic Crime Bureau. The Garda Sochána has the authority to recommend cases to the Department of Public Prosecution for prosecution and enforcement.
Depending on the issue or entity, there are a number of other regulatory agencies that may investigate or aid in inquiries, including:
the Director of Corporate Enforcement; the Revenue Commissioners’ Office; the Competition and Consumer Protection Commission; the Central Bank of Ireland; the Health and Safety Authority; the Office of the Data Protection Commission; and the Standards in Public Office Commission
On summary conviction, a person found guilty of active and passive influence trading faces a fine of up to EUR 5,000, a term of imprisonment of up to 12 months, a forfeiture order, or a combination of the above punishments.
an unlimited fine; imprisonment for a term not exceeding five years; an order for forfeiture; or a combination of any of the foregoing penalties on indictment (i.e. a more serious offense).
On summary conviction, a person found guilty of any other offense faces a fine of up to EUR5,000, a term of imprisonment of up to 12 months, a forfeiture order, or a combination of the foregoing punishments.
an unlimited fine; imprisonment for a term not exceeding ten years; an order for forfeiture; or a combination of any of the foregoing penalties on indictment (i.e. a more serious offense).
If a public official is convicted, the court can decide that they be removed from their public office and that they be barred from pursuing public office for a period of up to ten years.
Under the EU Public Procurement Directive, companies convicted of bribery violations may be barred from bidding on public contracts.