Table of Contents
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.
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.
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.