Corruption II

Procedural Aspects

Where in proceedings, it is proved that a person has received a donation in excess of the amounts allowed under electoral law (whether general or local elections) and the person fails to disclose the donation to the Public Offices Commission or local authority and the donor had an interest in the person doing any act or making any omission in relation to his office or position, the donation shall be deemed to be given and received corruptedly as an inducement to, or reward for the person doing an act or making an omission in relation to his office unless the contrary is proved.

In proceedings under the legislation, it is presumed that any gift, consideration or advantage was received corruptedly as an inducement to, or reward for performing or omitting functions, if it is proved the gift, consideration or advantage was given or received by a person and the person who gave the gift, consideration or advantage or on whose behalf it was given, had an interest in the discharge by the person of any functions of the type specified.

The specified functions include the granting, refusal or revocation of any license, permit certificate or authorisation. They include the making of a decision relating to the acquisition or sale of a property by a Minister or officer of a public body or any functions of a Minister or department or other persons employed by them in relation to public administration including, under planning law.

Warrants may be issued to search any place where evidence may be relating to the commission of an offence. The application may be made to the District Court or a Garda Siochana of the rank above superintendent. In the case of a warrant issued by a superintendent, it must be necessary for the proper investigation of the offence and circumstances of urgency must require its immediate issue such that an application to the District Court will be impracticable.

In common with similar legislation, it is an offence to obstruct or attempt to obstruct the execution of the warrant or to give misleading information or fail to comply with certain requirements.

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.

International

An offence may be tried in the State notwithstanding that some of the acts constituting the offence were committed outside the State. The international conventions ratified under the 2001 legislation requires states to apply corruption laws to corruption occurring wholly or partly in their state. Corrupt actions occurring outside the State in respect of Irish officeholders or officials may be prosecuted within the state. The 2001 Prevention of Corruption Act facilitates certain international conventions in relation to corruption. More generally, if sought to strengthen some aspects of the exiting corruption legislation.

The Prevention of Corruption Act 2010  modernised and strengthened the law on corruption. The legislation extends to any consideration or advantage offered or received. It extends to persons employed by the public administration of any other state, including a person under the direct or indirect control of the government of such state. It extends to multinational organisations. A state includes any subdivision of a federal state.

The 2010 legislation expands jurisdiction for corruption offences in respect of corruption outside the State to include Irish citizens or persons ordinarily resident in the State, companies registered in the State or established under the laws of the State and certain agents. It  also extends to domestic and foreign public officeholders.

Certain categories such as members of the Oireachtas, the judiciary and, members of public bodies may be prosecuted in the State for acts of corruption taking place wholly outside the state.

Whistle Blowing

Whistleblowing protection was introduced by 2010 legislation. A person is not liable civilly in respect of communications written or otherwise to an appropriate person where he is of the opinion that an offence under the prevention of corruption legislation is being committed unless that it is proved that he has not acted reasonably and in good faith in forming the opinion and communicating that to the appropriate person.

The employee must act in good faith and disclose only to an appropriate person. A person who states that a particular person has committed a corruption offence, knowing the statement to be false,  himself commits an offence.

The disclosure must be made to an appropriate person. This includes a member of Garda Siochana, in certain cases, the person’s employer or a nominated person.

An employer or a person acting in his behalf may not penalise an employee for forming an opinion of the type mentioned above and communicating it.

Penalisation is prohibited. This includes any act or omission by the employer or person acting on his behalf that affects his employment. It can include dismissal, layoff, suspension, denial of promotion, loss of opportunity or discipline.

Penalisation of an employee is itself an offence subject on summary conviction to a fine of up to €5,000 or 12 months in prison or both or on conviction on indictment, of  a fine of up to €250,000 or imprisonment for three years or both. Offences by companies are attributed to their officers and controllers.

There is a provision for redress for penalisation. A complaint may be referred to the Workplace relation Commission.