Pa Daly (Kerry, Sinn Fein) | Oireachtas source

I move amendment No. 1:

In page 5, line 9, after “offence.” to insert the following: “in deciding what constitutes reasonable steps and due diligence, consideration shall be given towards the following, inter alia:

(a) documented steps taken to avoid the commission of an offence;

(b) the existence of internal controls and processes within the body corporate to avoid the commission of an offence; and

(c) any other relevant actions to avoid the commission of an offence.”.

The amendment relates to section 5(2) which provides that “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 [an] ... offence”. Our proposed amendment provides that consideration would be given to what documented steps were taken to avoid the commission of the offence; the existence of internal controls and processes within the body corporate to avoid the commission of an offence; and any other relevant actions. We are not opposed to a defence in itself but our concern relates to the wording of the defence as contained in subsection (2). There has been a difficulty with that issue in recent years, particularly with white-collar crime. If it is spelled out more, we hope companies would be incentivised to put in place proper processes. The wording in this Bill is also contained in the Counterfeiting Bill and the proposed money laundering Bill. Also, the Department of Justice has a view regarding the strict liability for bodies corporate being potentially unconstitutional. However, we note the OECD stated this defence has not been invoked yet, and the courts have yet to interpret it. The OECD also stated it was not a defence envisaged by it and that it needs more detail. That is the gist of it.