Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I listened closely to Deputy Ó Laoghaire. I am not in a position to hold with him for the following reasons. We are anxious to achieve a strict liability offence whereby the body corporate is held responsible if someone connected with the body corporate does something corrupt that is for the benefit of the body corporate. Deputy O’Laoghaire is attempting to introduce a rebuttable presumption that the body corporate knew but the next question will be, who knew? If the individual’s supervisor or direct colleagues knew, does that represent the body corporate being aware? If, for example, the line manager knew but the directors did not know, is it questionable whether the body corporate was aware?

I know this is not Deputy Ó Laoghaire's intention but I would be a bit concerned that the proposed amendment is introducing a concept of a presumption that someone in power in the company knew what was happening. This adds further to the burden, and I believe it is an unnecessary layer. The amendment makes provision as to what happens where the proposed presumption is rebutted, but it does not make clear what is to happen where the presumption is not rebutted. This would cause uncertainty, and it may cause difficulties in achieving what we all want, which is a successful prosecution of what is an important offence.

It does not matter whether anyone in the body corporate knew. The company is still guilty unless it can prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. The approach already in the Bill is cleaner and simpler. The real purpose of this strict liability offence is to encourage companies to conduct due diligence and to take action to prevent corruption and corrupt acts. On the issue of providing for a defence, I would say that if bodies corporate have no defence available to them, there would not be an incentive to conduct the formal due diligence we believe is necessary in the circumstances.

The concept of a director, manager, secretary or other officer of the body corporate knowing, consenting or conniving is introduced in subsection (3). If it can be proven that that person knew, that person can also have proceedings taken against him or her. I am a bit concerned that there is an unintended consequence of introducing a new layer here that might make it more difficult to achieve a prosecution.