Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

I move amendment No. 11:

In page 20, to delete lines 26 to 29 and substitute the following:

“(2) (a) In proceedings for an offence under subsection (1), that where the body corporate in question stood to benefit from the commission of an offence under this section, by way of obtaining or retaining—(i) business for the body corporate, or

(ii) an advantage in the conduct of business for the body corporate,

there shall be a rebuttable presumption, that the body corporate was aware of the commission of the offence.

(b) If the presumption under subsection (1) has been rebutted, it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.”.

My colleague, Deputy Cullinane, Deputy Catherine Murphy, one of the Social Democrats Deputies, and some of the Fianna Fáil speakers made the point correctly that section 18 creates what would be identified by defence lawyers as a potential gap in the legislation. It is the manner in which companies that have been put into a position under what is a new offence to disassociate themselves from the actions of people within that company and use a defence of plausible deniability. I have made an attempt to tighten that up on the basis of a rebuttable presumption. The amendment is structured on the basis of the obtaining or retaining of the same two qualifications as exist in section 18(1). It states:

... by way of obtaining or retaining—(i) business for the body corporate, or

(ii) an advantage in the conduct of business for the body corporate,

I have included the words, "[...] there shall be a rebuttable presumption, that the body corporate was aware of the commission of the offence". That is a rebuttable presumption and all the qualifications that apply to such a presumption. After that reference to a rebuttable presumption I have inserted what is contained in section 18(2), which is that " [...] it shall be a defence for a body corporate [...] that it took all reasonable steps and exercised all due diligence". It is sensible that where a company was not responsible for the actions of its employee and that employee or member of the organisation was acting in a personal capacity and with no knowledge or complicity from his or her superiors, that should be a reasonable defence, but it cannot be allowed to be used as a loophole. It should not be too loose. If the Minister has other observations about how that object might be achieved, I am open to hearing them but as things currently stand, sections 18(1) and 18(2) are too loose and need tightening.