The Criminal Justice (Corruption Offences) Act 2018 was commenced on 30 July 2018. The Act repeals and replaces the seven existing Prevention of Corruption Acts 1889 to 2010 into one single statute.
However, this piece of legislation goes beyond merely consolidating the law in this area, it has completely modernised Irish anti-corruption law, providing for a number of new offences and for stronger penalties on conviction.
The Act provides for a number of offences based on the concept of acting corruptly, which is defined in the Act as acting with an improper purpose. These offences include:
- Active and passive corruption – where a person corruptly offers, gives, agrees to give, requests, accepts, obtains or agrees to obtain a gift, consideration or advantage as an inducement to or reward for any person doing an act in relation to his or her office, employment, position or business.
- Active and passive trading on influence - where a person directly or indirectly corruptly offers, gives, agrees to give, a gift, consideration or advantage to induce another person to exert an improper influence over an act of an official in relation to his or her office.
- Corruption in relation to office, employment, position or business – where an Irish official directly or indirectly carries out an act or uses confidential information in relation to his or her office for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person.
- Giving gift, consideration or advantage that may be used to facilitate an offence – the giving of a gift, consideration or advantage where the person knows or ought reasonably to know that it will be used to facilitate an offence under the Act.
- Creating or using a false document – where a person corruptly creates or uses a document that the person knows or believes to contain a false or misleading statement with the intention of inducing another person to do an act in relation to his or her office, employment, position or business to the prejudice of that other person.
- Intimidation – threatening harm to a person with the intention of corruptly influencing that person or another person to do an act in relation to that persons office, employment, position or business.
Corporate criminal liability
The Act also provides for the criminal liability of corporate bodies where a director, manager, secretary or other officer, employee or subsidiary commits an offence with the intention of obtaining or retaining business or an advantage in the conduct of business. If it is found that a corruption offence was committed by a company with the consent or connivance of an individual (eg a shareholder or director) or the offence was committed due to the wilful neglect of an individual, then the individual too may be found guilty of an offence under the Act in their own personal capacity.
The penalties reflect the seriousness of such conduct and are substantial. A company who is guilty under the Act could face a fine of at least €5,000. A person found guilty under the Act could receive a similar fine as well as a term of imprisonment of up to ten years.
In order to avoid conviction and a possible fine, the Act provides that it shall be defence for a company if it can show that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
Reasonable steps would include the adoption of a robust anti-corruption policy, which is clearly communicated to all staff. In the event that such a policy already exists, it should be reviewed to take account of the new legislation. A compliance manager should be appointed to ensure the successful integration of the policy and to monitor ongoing compliance.