Corruption Offences

Key Definitions

“Corruptly includes 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 other means;

The definition is intended not to be exhaustive, but to allow for “corruptly” to be construed in the context of the terms which are explicitly referred to in the definition and in a wider context of the ordinary meaning of the word. Most offences in the Act depend upon an act or omission being done “corruptly”. The concept is central to the construction of those offences and in understanding how the Act gives effect to aspects of the international anti-corruption instruments.

Traditionally there has been (and in the modern international agreements there is) a particular focus in the law on corruption by public officials. “Irish official” is defined to capture a very broad range of specified office holders and the officers, employees and members of any “Irish public body” which in turn is defined to include a wide list of bodies established by an enactment or which are State-owned in some way.

The definition of official is significant in three main ways. Certain offences apply to either an “official” or an “Irish official” The presumptions in Part 4 of the Act only apply in relation to acts or omissions involving officials. The criminal penalty of forfeiture of office, position or employment applies only to a subset of “Irish officials” as defined.

Active and passive corruption

A person who, either directly or indirectly, by himself or herself or with another person—

• corruptly offers, or
• corruptly gives or agrees to give,

a gift, consideration or advantage to a person as an inducement to, or reward for, or otherwise on account of, any person doing an act in relation to his or her office, employment, position or business shall be guilty of an offence.

A person who, either directly or indirectly, by himself or herself or with another person—

• corruptly requests,
• corruptly accepts or obtains, or
• corruptly agrees to accept,

for himself or herself or for any other person, a gift, consideration or advantage as an inducement to, or reward for, or otherwise on account of, any person doing an act in relation to his or her office, employment, position or business shall be guilty of an offence.

Scope of Above Offences

The offences address corruption within both the public and private sectors without distinction. The reference to office, employment, position or business is intended to cover all public and private sector positions, including those in voluntary bodies such as sporting or charitable organisations.

A bribe is referred  throughout the Act as “a gift, consideration or advantage”. The offences provide for a bribe to be given orr received directly or indirectly, alone or with another person. The bribe need not be aimed at inducing or rewarding the act of the recipient to fulfil the requirements of the offence; it may be an inducement or reward or otherwise on account of any person doing an act.

The bribe need not be actually given to fulfil the active offence as offering or agreeing to give are also specified. Similarly, the passive offence is fulfilled by accepting, obtaining or agreeing to accept. As it is, at common law, an offence to attempt to commit an offence, there is no specific reference in the Act to attempting to commit any of the offences.

 Active and Passive trading in influence

A person who, either directly or indirectly, by himself or herself or with another person—

• corruptly offers, or
• corruptly gives or agrees to give,

a gift, consideration or advantage in order to induce another person to exert an improper influence over an act of an official in relation to the office, employment, position or business of the official shall be guilty of an offence.

A person who, either directly or indirectly, by himself or herself or with another person—

• corruptly requests,
• corruptly accepts or obtains, or
• corruptly agrees to accept,

for himself or herself or for any other person, a gift, consideration or advantage on account of a person promising or asserting the ability to improperly influence an official to do an act in relation to the office, employment, position or business of the official shall be guilty of an offence.

It is immaterial whether or not—

• the alleged ability to exert an improper influence existed,
• the influence is exerted,
• the supposed influence leads to the intended result, or
• the intended or actual recipient of the gift, consideration or advantage is the person whom it is intended to induce to exert influence.

Background to trading in Influences

This gives effect to a recommendation of the Council of Europe Group of States Against Corruption (GRECO) to provide a discrete offence of “trading in influence” so as to better fulfil Article 12 of the Council of Europe Criminal Law Convention on Corruption. It prohibits the promise of an undue advantage to someone who asserts he or she can exert an improper influence over a public official’s decision making.

This covers both active and passive trading in influence, i.e. a person offering a bribe in order to induce a third party to exert an improper influence over an act of an official and corruptly accepting the bribe on these grounds. It is immaterial whether the alleged ability to exert the improper influence existed or whether the supposed influence led to the intended result.

Corruption in relation to Position

An Irish official who, either directly or indirectly, by himself or herself or with another person, does an act in relation to his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person, is guilty of an offence.

An Irish official who uses confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person shall be guilty of an offence.

This criminalises any act of an Irish official, carried out in relation to his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for any person. In light of a recommendation of the Mahon Tribunal, it makes it an offence for an Irish official to use confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage.

Giving gift, consideration or advantage which may be used to facilitate offence under the Act

A person who gives a gift, consideration or advantage to another person where the first-mentioned person knows, or ought reasonably to know, that the gift, consideration or advantage, or a part of it, will be used to facilitate the commission of an offence under this Act is  be guilty of an offence.

Creating or using false, etc., document

A person who, either directly or indirectly, by himself or herself or with another person, corruptly creates or uses a document, that the person knows or believes to contain a statement which is false or misleading in a material particular, 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 the last-mentioned person or another person is an offence.

A “document” includes—

• a book, record or other written or printed material in any form (including in any electronic device),
• a map, plan or drawing,
• a disc, tape or other mechanical or electronic device in which data other than visual images are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced from the disc, tape or other device,
• a film, disc, tape or other mechanical or electronic device in which visual images are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced from the film, disc, tape or other device, and
• a copy of any of the above
• “electronic device” includes any device which uses any electrical, digital, magnetic, optical, electromagnetic, biometric or photonic means, or other forms of related technology, or any combination thereof, to store or transmit data or both to store and transmit data.

This provision  makes it an offence to corruptly create or use a document which the person knows or believes to contain a statement which is false or misleading in a material particular. Such creation or use of the document must be done with the intention of inducing another person to do an act to his or her prejudice or that of another person. “Document” is defined  to include a broad range of paper, electronic and other forms of records.

Intimidation

A person who, either directly or indirectly, by himself or herself or with another person, threatens harm to a person with the intention of corruptly influencing that person or another person to do an act in relation to the person’s office, employment, position or business shall be guilty of an offence.  “harm” includes loss, disadvantage or injury of any kind.

Corruption Occurring Partly in or Outside State

A person may be tried in the State if any act which partly constitutes an offence under the Act occurs in Ireland, on an Irish ship, or on an Irish aircraft. There is extensive extra-territorial jurisdiction in respect of  the principal corruption offences.

Proceedings for an extra-territorial offence to be taken in any place in the State.