The law on corruption has been modernised in recent years following the exposure of shortcomings.
The Public Bodies Corrupt Practices Act 1889 criminalises 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.
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.
Corruption regarding 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.
Seizure of Benefit
Members of an Garda Siochana may seize any gift or consideration suspected to be a corrupt gift or consideration in the above sense. It may be detained for up to 48 hours. A further period of detention may be ordered by the Circuit Courts. The court may make the order if there are reasonable grounds for suspecting the seized property is a gift or consideration as above or that either its origin or derivation is being further investigated or consideration is being given to instituting of proceedings whether in the State or elsewhere against a person for an offence with which the gift or consideration is connected and that it is therefore necessary for the property to be detained for a further period. The judge may authorise the detention of the seized property for a further specified period of up to 3 months and up to 2 years in aggregate.
A judge of the Circuit Court may order any gift or consideration which is detained above to be forfeited if satisfied on an application made by the DPP that it is a corrupt gift or consideration as above. The order may be made whether or not proceedings are brought against any person for an offence with which the gift or consideration is connected. The civil standard of proof applies.
The provisions of the proceeds of crime legislation apply, including in particular that applies to appeals against forfeitures, interest, and the disposal of forfeited cash and assets.
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