New Act brings tougher measures to combat White Collar CrimeThursday, 25 October 2018
The Criminal Justice (Corruption Offences) Act 2018 (“the Act”) came into force on 30 July 2018. The new anti-corruption Act overhauls Ireland’s existing anti-corruption legislation and has far reaching effects creating new offences and tougher penalties. The Act criminalises both direct and indirect corruption in both the public and private sectors and significantly increases the penalties for corruption offences.
For conviction on indictment the penalties for most offences are imprisonment for up to 10 years, an unlimited fine, forfeiture of any bribe, possible forfeiture of office for public servants and elected officials and possible prohibition from seeking public office for up to ten years.
New Offences created under The Act:
- Active and passive trading in influence are offences under the Act;
- A new offence where an Irish official engages in a corrupt act in relation to his or her office;
- A new offence of giving a gift, consideration or advantage knowing that it will be used to facilitate a corruption offence;
- A new offence of creating or using false documents is created under the Act;
- A new offence of intimidation where a threat of harm is used instead of a bribe;
- A new strict liability offence for bodies corporate where any individual connected with the company has been found guilty of a corruption offence.
Other Key Points:
- The Act contains provisions for seizure and forfeiture of bribes;
- Where there is a failure to disclose or return a donation there is a presumption that the donation is corrupt under section 15 of the Act;
- The presumption of corrupt gifts is extended to connected persons (i.e. a spouse, civil partner, parent, child, a business partner etc.); and
- There are new provisions for forfeiture of public office and for prohibition from seeking public office for up to ten years for Irish Officials.
Criminal Liability for Corporate Bodies and Senior Management:
One of the key aspects of the new Act is a new corporate liability offence where a body corporate may be found guilty if anyone acting on behalf of that body commits a corruption offence. A body corporate convicted under the Act could face an unlimited fine.
Where an offence is committed by a body corporate with the consent, connivance or wilful neglect of a director, manager, secretary or other officer of the body corporate that person will also be guilty of an offence.
It will be a defence to a prosecution for the body corporate to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. Therefore it will be prudent for companies and public bodies to have anti-corruption policies in place.
Taking Action – How your company can comply with the new legislation
Companies should ensure they have a strong anti-corruption and anti-bribery policy in place in respect of how they win, retain and conduct business, and provide training to all employees, directors and contractors. The implementation of the policy should be reviewed regularly to ensure existing policies and procedures remain relevant and current.
If you require advice in relation to the new legislation including the development of anti-corruption and anti-bribery policies and procedures for your organisation, we can advise you on how to respond to the requirements of the new legislation in practice. Furthermore, if your organisation becomes aware of an alleged offence, we can also assist you in managing potential reputational damage and in engaging with the relevant authorities.
The ByrneWallace Corporate Crime, Regulatory Investigations and Enforcement team has extensive experience of fraud and corruption investigations. We advise companies to evaluate the bribery and corruption risks relevant to their business taking into account the industry sector and jurisdictions in which they operate and then assess those risks based on the nature, scale and complexity of their activities.
For further information on The Criminal Justice (Corruption Offences) Act 2018, or general advice in relation to white collar crime, contact Seán O’Donnell or Jon Legorburu from the ByrneWallace Corporate Crime, Regulatory Investigations and Enforcement team