Corruption Context

Background

The law on corruption has been modernised in recent years following the exposure of shortcomings. The Public Bodies Corrupt Practices Act 1889 criminalised bribery and corruption of and by members and officers of public bodies. It is an offence to corruptedly solicit or corruptedly give any benefit, gift or payment.

Any person who shall by himself or in conjunction with another corruptedly solicit, receive or agree to receive for himself or another any gift, loan, fee, reward, or advantage whatsoever as an inducement to or reward for or otherwise on account of an officeholder or his special advisor or a director or occupier of a position of employment in any public body for doing or forbearing to do anything in respect of a matter or transaction whatsoever, actual or proposed in which the said officeholder or public body is concerned is guilty of an offence.

It is also an offence for a person who by himself or in conjunction with others corruptly gives, promises, or offers any gift, loan,  fee, reward or advantage whatsoever to any person whether for the benefit of that person or another as an inducement to or reward or otherwise on account of an officeholder or his or her special advisor or director or occupier of a position of employment in any public body for doing or forbearing to do anything in respect of a matter or transaction whether actual or proposed with which the said officeholder or public body is concerned.

A public official who does any act in relation to his office or position for the purpose of corruptedly obtaining a gift or advantage for himself or another is guilty of an offence. It is subject to summary conviction to a fine of up to €3000 or imprisonment up to 12 months or both. It is subject on conviction on indictment to a fine or imprisonment up to 10 years or both. A public official includes anyone in a category of persons mentioned above.

Convention on Corruption

The Criminal Justice (Theft and Fraud Act) enacts the Convention on the Protection of the Financial Interests of the European Union. In broad terms, the legislation is aimed at fraud and corruption affecting the European Union. The fraud may be committed inside or outside the State.

Fraud affecting the EU’s financial interests is defined by the Convention which is incorporated in the legislation. It is an offence to commit fraud affecting the EU’s financial interests, to participate, instigate or attempt such fraud or obtain the benefit or derive pecuniary advantage from such fraud. The offence is subject to imprisonment for a term of up to 5 years, and /or a fine, or both.

A person who commits an act of corruption is guilty of an offence that carries the same punishment as above. Active corruption is defined by the protocol to the convention. It is a deliberate action by which a person promises or gives directly to an intermediary, an advantage of any kind whatsoever to an official for himself or for a third party to act or refrain from acting in accordance with his duty or in the exercise of the functions, in breach of his official duties in a way which damages or is likely to damage the EU’s financial interests. States must take the necessary steps to ensure that this constitutes a criminal offence.

Passive corruption is also an offence subject to the same punishment. It consists of the deliberate action of an official who directly or through an intermediary request or receives advantages of any kind whatsoever for himself or a third party or accepts a promise of such an advantage or acts or refrains from acting in accordance with his duty or the exercise of his functions in breach of his duty in such a way as to damage the EU’s financial interest. Likewise, this must be criminalised.

The legislation applies to active or passive corruption inside or outside the state where the offender is a citizen, national official or EU  official. It also applies where; in the case of active corruption it is directed against officials or members of the institution above who is an Irish citizen. The consent of the DPP is required to prosecution.

2018 Reform

Criminal Justice (Corruption Offences) Act 2018 provides a single Act to repeal and replace the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906, the Prevention of Corruption Act 1916, section 38 of the Ethics in Public Office Act 1995, the Prevention of Corruption (Amendment) Act 2001, Part 5 of the Proceeds of Crime (Amendment) Act 2005 and the Prevention of Corruption (Amendment) Act 2010. The Act also gives effect to some of the recommendations of the Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments (2012) (Mahon).

The Act makes renewed provision for the main requirements of a number of international anti-corruption instruments, which Ireland has already ratified. It also provides for various recommendations made in the course of evaluations of Ireland’s implementation of the international agreements. The key instruments are as follows:

• the 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 done at Brussels on 26 May 1997 and adopted by Ireland on 11 March 2003;
• the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted at Paris on 21 November 1997 and ratified by Ireland on 22 September 2003;
• the Council of Europe Criminal Law Convention on Corruption done at Strasbourg on 27 January 1999 and ratified by Ireland on 3 October 2003;
• the EU Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector;
• the Additional Protocol to the Council of Europe Criminal Law Convention on Corruption done at Strasbourg on 15 May 2005 and ratified by Ireland on 11 July 2005;
• the United Nations Convention Against Corruption done at New York on 31 October 2003 and ratified by Ireland on 9 November 2011.

Misc 2018 Changes

Certain provisions f the Criminal Justice Act 1994 relating to appeals against forfeiture orders, interest on cash detained, procedure and disposal of forfeited cash to apply in relation to cash and any other gift or consideration detained or forfeited.

Criminal Justice (Corruption Offences) Act 2018  updates the references in other legislation as appropriate to corrupt conduct, corruption offences, offences against the administration of justice and relevant offences to take account of the offences in the Act.

It amends various pieces of legislation relating to the election or removal of TDs, Senators, MEPs and Local Authority Members. This is to provide clarity around the procedure involved should a court order the forfeiture of an elected office.

Pre- 2018 Act Corrupt Solicitation or Payment

A corrupt solicitation or payment is one that involves the deliberate offering of cash or benefits with the intention that it should cause the person concerned to enter or not to enter a particular transaction. If neither party intended the payment to be corrupt, or it is made as a genuine gift, there is no corruption.

Some cases and authorities limit the scope of what might be held to be “corrupt”,  on the part of the “innocent” party. It appears that a transaction might not be corrupt on the part of the innocent party where the other party only intends it to be corrupt but the innocent party does not know or knows the other’s intention but has a bona fide and honest basis in relation to some non-corrupt consideration which he provides. It appears not to be corrupt where the innocent party knows the other’s intention but has no intention on his part to undertake anything in return. Equally, where he intends to cooperate only for the purpose of subsequently exposing the other party, it appears the offence is not committed. A person may include a company or firm or group.

An advantage may include any monetary and another valuable thing, could be any dignity or office. It includes any vote, consent or pretended aid or influence. It includes any promise of procurement, agreement to endeavour to procure the holding out or any expectation of any fee, gift, loan, reward or advantage. The inducement or bribe may be for past favours or as an inducement for future favours.

1995 Ethics in Public Office legislation defined a wide range of bodies as “offices” for the purpose of the legislation. It includes most offices of state including governmental, local governmental, health authorities and any state-sponsored bodies in the governmental sector.

The offence may be charged summarily or on indictment. Summarily the maximum penalty is €1,270 and/ or up to 12 months imprisonment or both. On indictment, the maximum penalty is a fine of up to €63,500 and imprisonment up to 7 years or both. The value of any benefit received or paid may be ordered to be repaid. In the case of an employee or officer of a public body, the court may order forfeiture of his right to compensation or a pension. The consent of the DPP is required for prosecution.

Pre-2018 Act Corruption re Officials /Agents

The Prevention of Corruption Act 1906 applies to corruption of transactions with certain “agents” and certain others with a view to influencing the conduct of the agent or the other. An agent includes any person employed by another. It includes an officeholder or director, including an officeholder in the public sector. The legislation extends to prosecutors and judges in the domestic or international courts. The person may not be convicted under the public bodies corruption legislation in this legislation in respect of the same offence.

A person who corruptedly accepts or obtains or agrees to accept or attempts to obtain for himself or for another any gift, consideration or advantage as an inducement to or a reward for or otherwise on account of the agent doing any act or making any omission in relation to his or her office or position or that pf his principal, business or affairs is guilty of an offence.

Similarly, a person who gives or agrees to give or corruptedly offers such a gift or consideration to an agent or another whether, for the benefit of that agent, person or another 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 position is guilty of an offence.

A person who knowingly gives to any agent, or any agent who knowingly uses with intent to deceive his principal any receipt account or other document in respect of which the principal is interested and which contains a statement which is false or erroneous or defective in any material particular, which to his or her knowledge is intended to mislead a principal is guilty of an offence

The penalty on conviction summarily is €3000 or imprisonment up to 12 months or both. On conviction on indictment, the penalty is imprisonment for a term up to 10 years or a fine or both. The consent of the DPP is required for prosecution.

Where in any proceedings under the above legislation it is proved that money, gift or consideration has been paid or given or received by a public office holder, agent, etc. as above, the money, gift or consideration is deemed to have been paid, given and received corruptedly as an inducement or award as above unless the contrary is proved. This provision was introduced under the 1995 Act.