CHECK AGAINST DELIVERY
Criminal Justice (Corruption Offences) Bill 2017
Second Stage Speech
Minister for Justice and Equality, Mr Charles Flanagan TD
15th November 2017
A Cheann Chomhairle
I move that the Bill be read a second time.
I am pleased to introduce the Criminal Justice (Corruption Offences) Bill 2017 to the House today. This is a priority piece of legislation for the Government aimed at combatting corruption at all levels of society. As Deputies will be aware, a new cross-departmental suite of measures aimed at tackling white collar crime was announced two weeks ago by myself and the Tánaiste, the Minister for Finance and the Minister for Transport. This suite of measures was developed to respond more effectively to economic and regulatory crime, which has the capacity to seriously damage Ireland’s economy, and our reputation on the world stage as being a safe place to do business. One of the four areas on which the package focusses is countering corruption and this is the topic of the Bill before us today. This Bill provides for a consolidated corruption statute to replace and reform the provisions of the seven main anti-corruption measures, starting with the Public Bodies Corrupt Practices Act 1889, and up to and including the Prevention of Corruption (Amendment) Act, 2010. It is important to highlight that this is not merely an exercise in consolidation. The Bill will strengthen and clarify the key corruption offences, and will create new offences. Most importantly, it will provide for more severe penalties for those who engage in corrupt behaviour.
The Bill encompasses corruption both within the public and private sector, but with a particular focus on public officials acting in the course of their duties, reflecting the high level of trust that is placed in them. It is imperative that the penalties provided for in the Bill adequately reflect the negative consequences that corruption can have on society, as well as the increasing concern and focus on white collar crime. The penalties for conviction on indictment for the main corruption offences are up to 10 years’ imprisonment and/or an unlimited fine. There are additional penalties that a Court can impose on certain public officials who breach the public’s trust through corruption. The Courts have been given powers under the Bill to remove certain officials from office, and to exclude them from holding office for up to 10 years, subject to the safeguards as set out in the Bill. This can be in addition to any other penalties under the Bill. As regards suspected bribes, while they can already be seized and forfeited under the existing legislation, the Bill strengthens these provisions by allowing the courts to order the forfeiture of assets equal to the value of any bribe given or received.
Reflecting the recommendations of the Mahon Tribunal, certain new offences are being introduced. For instance, the Bill provides for a new offence covering public officials who use confidential information obtained in the course of their duties to corruptly obtain an advantage. There is another new provision which criminalises making payments knowingly or recklessly to a third party who intends, in turn, to use them as bribes. It is intended also to enhance the ability of the Director of Public Prosecutions to bring prosecutions by providing for extended presumptions of corruption. For instance, a presumption of corruption may arise where a person with an interest in the functions being discharged by a public official makes a payment to that official - this could be where an applicant for planning permission makes a payment to a planning official, by way of example. The Bill also provides clarity in respect of the liability of companies for the corrupt acts of their officers and employees. I will go through these provisions in more detail, as I set out the content of the Bill
The Bill also reflects our international commitments, providing for the main requirements of a number of international anti-corruption agreements to which Ireland is a party. They include the Council of Europe Criminal Law Convention on Corruption, the EU Anti-Corruption Convention, the UN Convention against Corruption, and the OECD Convention on Bribery of Foreign Public Officials. Our membership of these key international anti-corruption groups affords us a further opportunity to review the various anti-corruption measures we have already in place, and to improve our laws in the light of our experience and participation in these international fora.
Turning now to the detail of the Bill, I would like to outline its key provisions:
Section 2 defines the key terms used in the Bill, for example “Irish official”, “foreign official” and “Irish public body”. These categories need separate definition, as some particular provisions apply specifically to those within the public sector, such as in Part 4 of the Bill, containing the presumptions relating to corruption. The term “corruptly” is defined, addressing a recommendation from the OECD in an earlier evaluation in this regard, and the text replicates the definition contained in the Prevention of Corruption (Amendment) Act 2010.
Section 5 defines the offences of active and passive corruption, meaning persons who corruptly offer an advantage, which is active corruption, and those who corruptly accept a bribe, which is passive corruption, may be prosecuted under this section. These offences no longer contain reference to corruption of or by “an agent”. While this term was used in the description of the original offence under the Prevention of Corruption Act 1906, the modern definition of “agent” was expanded to cover a very broad spectrum of people, and so the “agency” principle is no longer applicable. As was previously the case, the offences encompass corruption within both the public and private sectors, and the reference to office, employment, position or business is intended to cover all public and private sector occupations, including voluntary bodies and sporting and charitable organisations. Deleting the usage of the term “agent” was recommended by the OECD in the course of their evaluation of Ireland’s implementation of the OECD anti-bribery Convention.
Section 6 of the Bill gives effect to a recommendation from the Council of Europe, and provides for a discrete offence of “trading in influence”, prohibiting the promise of an undue advantage to someone who asserts they can exert an improper influence over a public official’s decision making. Like the corruption offence, this section covers active and passive trading in influence. Subsection (3) makes clear that it is immaterial whether the alleged ability to exert the improper influence existed or whether the supposed influence led to the intended result. The provision in relation to trading in influence is also contained in the United Nations Convention against Corruption.
Section 7 criminalises any act of an Irish official, carried out in the course of their official position, with the intent of corruptly obtaining an advantage for anyone. It differs from the main corruption offence in that it is not required that another party is involved, and a new provision at subsection (2) makes it an offence to use confidential information obtained through their office for this purpose. This new provision reflects a recommendation of the Mahon Tribunal.
Also giving effect to a recommendation from that Tribunal, Section 8 contains a new offence of giving a gift etc to another person, where the donor knows or ought reasonably to know that the payment might be used to facilitate commission of an offence under the Act.
Section 9 extends the existing offence of knowingly using a false document, to include the creation of such a document with intent to induce another person to carry out an act relating to his or her office or business etc, and contains an updated modern definition of “document” at subsection (3) covering a broad range of electronic records.
Section 10 provides for a new offence of corruptly threatening harm to a person, intending to influence someone to carry out an act in relation to his or her office, employment or business. I believe that this provision is a worthwhile innovation, reflecting the fact that a threat can be used in place of offering a bribe, when seeking to influence the actions of another in a corrupt manner.
Part 3 of the Bill contains provisions in relation to the jurisdiction of the State in circumstances where elements of the corruption offence take place outside the State or only partly in the State.
Section 11 clarifies that a person may be tried in the State if any element of the offence occurs here, for instance where an offer of a bribe is made abroad but received in Ireland, reflecting a similar provision contained in the Prevention of Corruption (Amendment) Act 2001.
Section 12 provides for extensive extra-territorial jurisdiction in respect of corruption occurring outside the State, for instance where the relevant act takes place aboard an Irish ship or aircraft, or where the person concerned is an Irish citizen or official, or an Irish registered company or body corporate as set out therein. Subsections (3) to (5) are additional provisions inserted to give full effect to Article 7 of the EU Convention on fighting corruption, and to address certain jurisdictional requirements in this regard.
One of the key elements of this legislation lies in Part 4, which sets out the presumptions which are applicable where proceedings for corruption offences under the Act are underway. They adjust the burden of proof by requiring an accused person to demonstrate that they did not act in a particular way or carry out a particular action as opposed to the usual requirements for the prosecution to prove that a particular act had been carried out. Of course, these presumptions can be rebutted by evidence proving the contrary, and the standard of proof is the civil one – the balance of probabilities. These provisions are there to assist prosecutors in securing a conviction in white collar trials, which are often complex and difficult to prove beyond a reasonable doubt.
Section 14 contains a rebuttable presumption that where a payment or gift is made to an official or a connected person, and the giver has an interest in the way those functions are exercised, then the payment or gift is deemed to have been given corruptly as an inducement or reward for the person acting or refraining from acting in accordance with his or her duties, unless the contrary is proved.
Subsection (3) lists the functions or decisions of officials which are applicable in this case, which include the acquisition or sale of property, award of tenders and contracts, licences and passports, as well as the exercise of judicial functions and the administration of justice. Irish officials’ functions in relation to the Planning and Development Acts 2000 to 2010, are included, as well as functions relating to NAMA and the Central Bank. Reflecting the recommendations of the Mahon Tribunal, the presumption extends to gifts or advantages given to or received by or for the benefit of a “connected person” of the official as defined at section 14(5). This includes family and close business relationships.
Section 15 provides for a presumption whereby if a person to whom the section applies fails to disclose a donation exceeding the relevant amount specified in 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 as an inducement. This presumption is based on that contained in section 3 of the Prevention of Corruption (Amendment) Act 2001. This presumption, as recommended by Mahon, will also apply where a recipient fails to return a donation exceeding the limits set out in the electoral legislation.
Section 16 relates to Irish officials defined as “members” or “office holders” providing for a presumption of corruption where persons who are required to declare certain statements of interests pursuant to the Ethics in Public Office Acts 1995 and 2001 failed to make the necessary declarations. When corruption proceedings are taken against such a person, the section provides for 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.
Penalties and Enforcement (Part 5)
There are some new components in Part 5 of the Bill deals with penalties and enforcement, and the objective is to provide for stronger penalties for the offences, including forfeiture of office, and to clarify the criminal liability of corporate bodies for corrupt acts committed by their directors or officers.
Section 17 outlines the penalties applicable to person when convicted of a corruption offence under the Bill. The offence of trading in influence carries a maximum of 5 years’ imprisonment for conviction on indictment and an unlimited fine. Conviction on indictment for offences under sections 5, 7, 8, 9 or 10 carries a maximum penalty of 10 years’ imprisonment and an unlimited fine. The sanctions in this section also include forfeiture of office under subsection (4) in respect of certain Irish officials, other than those officials whose removal from office would require a parliamentary impeachment procedure, or where there are particular constitutional provisions protecting their independence. It is important to note that the application of these penalties can only occur after a determination by a court, where a judge considers that 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 proceed with forfeiture. A court may also order that a relevant official found guilty on indictment may be prohibited from seeking certain public offices for up to ten years.
Section 18 provides that where a relevant offence has been committed by a person such as a company director or any other employee, with the intention of obtaining an advantage for his or her company, then the company as well as the individual may be liable for the offence. Subsection 2 provides for a defence that the body corporate took all reasonable steps and exercised due diligence to avoid the commission of the offence. Under subsection (3), where it is proved that an offence by a body corporate was committed with the consent or connivance or was attributable to any wilful neglect of a director, manager or secretary of that body, then that person as well as the body corporate is deemed guilty of the offence.
Section 19 is a standard provision, providing that 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. This would be relevant as regards corruption offences occurring outside the State.
Sections 20 relates to the seizure of a suspected bribe, and section 21 enables a Circuit Court judge to order the forfeiture of seized property.
Part 6 of the Bill covers miscellaneous matters, including providing for consequential amendments to other legislation as a result of the amendments in this Bill. Sections 23 to 26 update the references in other legislation as appropriate to corrupt conduct, corruption offences, offences against the administration of justice and relevant offences. Sections 27 to 31 will amend legislation relating to the election or removal of TDs, Senators, MEPs and Local Authority Members. This is to provide clarity around the procedure involved should a court order the forfeiture of an elected office.
In conclusion, a Cheann Chomhairle, the Bill before the House today marks a significant addition to our laws against corruption.
By repealing laws that are dating back as far as 1889, and by replacing them with a single modern statute, we are ensuring that anti-corruption law is more accessible to the public. In relation to public officials, this Bill complements recent legislation such as the Regulation of Lobbying Act, 2015 and also the Public Sector Standards Bill which is before the Houses at present. These measures will increase transparency in how public officials conduct themselves in office, while ensuring those officials who transgress the high standards required by their office are adequately dealt with.
By its nature, corruption often involves an international dimension. The reputation of a State and its business community can be affected by the rigour with which it tackles corruption. It is a clear demonstration of our engagement with international efforts at the UN, the OECD, the EU and the Council of Europe to tackle the problem. By expanding our range of offences, presumptions and extra-territorial jurisdiction in the area of corruption, it ensures that our international obligations to tackle bribery and corruption both domestically and abroad are being properly addressed.
Finally, as elected officials and public servants, I believe that members of this House understand that it is only by holding ourselves up to the highest standards, that we can tackle corruption effectively and maintain or improve the trust, respect and support of the Irish public.
I look forward to a debate on this measure and commend the Bill to the House.