Corruption Proceedings
Presumptions Relating to Corruption I
If it is proved that a gift, consideration or advantage is given to an official by a person with an interest in the functions of the official, then it is presumed that it has been given and received corruptly as an inducement or reward for the official acting in relation to those functions. The presumption operates whether the gift etc. is given directly or indirectly to the official. The presumption, like all presumptions in the Act, can be rebutted by evidence proving the contrary on the balance of probabilities.
Where, in any proceedings against a person it is proved that—
- a gift, consideration or advantage has been given to an official or a connected person of an official, given to a person while intended to be for the benefit of an official or a connected person of an official, or) received by or on behalf of an official or a connected person of an official, and
- the person who gave the gift, consideration or advantage, or on whose behalf the gift, consideration or advantage was given, had an interest in the discharge by the official of any of the functions concerned,
the gift, consideration or advantage shall be presumed to have been given and received corruptly as an inducement to, or reward for, or otherwise on account of, that official doing an act in relation to the performance of any of those functions, unless the contrary is proved.
Presumptions Relating to Corruption I
There is a presumption that a gift, consideration or advantage given to an official has been given and received corruptly where an official performs (or omits to perform) a prescribed function so as to confer an undue advantage on the giver.
Where, in proceedings against a person it is proved that—
- a gift, consideration or advantage has been given to an official or a connected person of an official,) given to a person while intended to be for the benefit of an official or a connected person of an official, or) received by or on behalf of an official or a connected person of an official, and
- the official performed or omitted to perform any of the functions to which the Act applies so as to give rise to an undue benefit or advantage to the person who gave the gift, consideration or advantage, or on whose behalf the gift, consideration or advantage was given,
the gift, consideration or advantage shall be presumed to have been given and received corruptly as an inducement to, or reward for, or otherwise on account of, that official doing an act in relation to the performance of any of those functions, unless the contrary is proved.
Functions Covered
The above apply to functions of officials relating to the following matters or under the following enactments:
- the awarding, granting, issuing, sanctioning, renewal, refusal, withdrawal or revocation of—
- a tender for goods or services,
- a contract,
- a grant, payment or loan, or a credit facility of any kind,
- a licence, permit, certificate, warrant, authorisation or similar permission or instrument, or
- a passport, visa or immigration permission or status;
- the making of a decision regarding—
- the appointment of a person to an office, position or employment,
- the acquisition, letting or sale of any land or other property by any means, or
- a designation affecting the treatment of any land, cash or other property or income for the purposes of any tax or any rate of taxation;
- the investigation or prosecution of offences;
- the exercise of judicial functions;
- the administration of justice;
- the performance by the Central Bank of Ireland of its functions;
- the performance by the National Asset Management Agency of its functions;
- the Planning and Development Acts 2000 to 2016 and any Act which is to be construed together as one with those Acts.
The Minister may prescribe a class of persons for the purposes of the definition of “connected person” of an official only if the Minister is satisfied that it would be appropriate for the provisions to be applied in relation to members of the class, having regard to any heightened risk, arising from their close family relationship with the official, that such persons may be involved in the above offences.
Presumption of corrupt donation
There is a presumption whereby if a TD, Senator, Local Authority Member, or a Member of the European Parliament receives a donation in excess of a relevant amount or of a type prohibited by the Electoral Act 1997 or the Local Elections (Disclosure of Donations and Expenditure) Act 1999, and the donor had or has an interest in the recipient’s actions, the donation is deemed to have been given and received corruptly. The exception is where the donation is returned to the donor or Standards in Public Offices Commission has been notified, as required.
Presumption of corrupt enrichment
Where Irish public officials or office holders, such as persons who are required to declare certain statements of interests pursuant to the Ethics in Public Office Acts 1995 and 2001, and who have failed to make the necessary declarations, there is a rebuttable presumption of corrupt enrichment in respect of the undeclared interests, i.e. that the property concerned derives from a gift or advantage received, on account of the person carrying out an act in relation to his or her office or business.
Where, in any proceedings against an Irish official who is or was a member or an office holder for the principal corruption offences it is proved that he or she owns or has, or owned or had, an interest in land or other property that was required to be declared in the statement of registrable interests of that member or office holder but was not so declared, the following presumption applies.
It shall be presumed that the land or other property referred to derives or derived, either directly or indirectly, from a gift, consideration or advantage received as an inducement to, or reward for, or otherwise on account of, the Irish official doing an act in relation to his or her office, employment, position or business, unless the contrary is proved.
Penalties and Enforcement
All offences are, upon summary conviction, subject to imprisonment for up to 12 months and a Class A fine. Upon conviction on indictment, all offences are subject to an unlimited fine and up to ten years’ imprisonment. There are two exceptions:
- Penalties for the trading in influence offence are the same for a summary conviction. However, on conviction on indictment, the penalties can be a fine and/or up to 5 years’ imprisonment.
- Bodies corporate convicted under can be liable to, on summary conviction, a class A fine and, on conviction on indictment, to a fine.
There is criminal liability for bodies corporate where a director, manager, secretary or other officer, employee or subsidiary commits an offence under the Act with the intention of obtaining or retaining business or an advantage in the conduct of business for the body corporate. It is a defence for a body corporate which proves that it took all reasonable steps and exercised due diligence to avoid the commission of the offence.
There is also individual criminal liability of senior officers of a company for offences committed by the company with their consent, connivance or because of their wilful neglect.
Forfeitures
There is provision for the forfeiture of bribes connected with an offence (or property of equivalent value) whether conviction is summary or upon indictment. Any combination of imprisonment, fine or forfeiture of bribe can be applied in each case.
There is provides for the forfeiture of a seized bribe if a judge of the Circuit Court is satisfied that it is a gift or consideration for purposes which constitute a corruption offence. This order may be made whether or not proceedings under the Act are being brought.
Provision is made for forfeiture of office, position or employment as an Irish official, following conviction on indictment for certain corruption offences under this Act. The law on corruption has always been particularly concerned with breaches of trust vested in public officials. The Public Bodies Corrupt Practices Act 1889 originally contained in a liability to be adjudged incapable of public office upon conviction. Article 30 of the United Nations Convention Against Corruption requires consideration of certain such measures. The application of this provision can only occur where,, the court considers it is in the interest of maintaining or restoring public confidence in the public administration of the State and where it is in the interests of justice to do so.
Some offices are excluded from the forfeiture of office penalty, mainly because either the Constitution or an Act of the Oireachtas has made removal from office contingent upon resolutions of the Houses of the Oireachtas. Other offices are excluded because the power of removal from office derives from a Constitutional power.
There is a prohibition of a person from seeking public office for a period of up to ten years following conviction on indictment for certain corruption offences. This prohibition will not apply to a person seeking to be elected to the Dáil, Seanad, European Parliament or a Local Authority.
A certificate from the Department of Foreign Affairs and Trade in relation to a person’s citizenship shall be evidence that this is the case.
Seizure
A member of an Garda Síochána to seize and detain property suspected to be a bribe (gift or consideration) for up to seventy two hours. A judge of the Circuit Court may order the continued detention of the property for a three month period where satisfied that there are reasonable grounds to suspect that the seized property is a bribe and one or more of the following applies:
- the origin of the property is being investigated,
- an application for forfeiture has been made, or
- proceedings for an offence connected with the property are contemplated.