Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am pleased to introduce the Criminal Justice (Corruption Offences) Bill 2017 to the House this afternoon. I am also pleased to report that it received broad support on its recent passage through the Lower House.The Bill is substantial and will completely overhaul Ireland's anti-corruption regime. It consolidates seven anti-corruption Acts from as far back as 1889 up to 2010. As well as repealing and replacing the previous legislation, the Bill before us introduces a raft of new offences. Most important, it will provide for more severe penalties for those who engage in corrupt behaviour.

The Bill is a central piece of the Government's 2017 white collar crime package. It is a priority piece of proposed legislation from the Government, aimed at combatting corruption at all levels of society. This is extremely important as Ireland needs to protect its reputation on the world stage as being a safe place in which to do business. The Bill is also a response to a number of international organisations which have a monitoring and evaluation role in regard to corruption. Ireland is a party to a number of these international conventions. We take these commitments very seriously. The Bill reflects those international commitments.

The instruments 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 light of our experience and participation in these important international fora.

This Bill addresses the public and private sector. However, it has a particular focus on public officials acting in the course of their position and I believe this is only right, having regard to the high level of trust placed in them. The penalties proposed are severe and fit with the seriousness of the crime involved. The penalties for conviction on indictment for the main corruption offences are up to ten years imprisonment and-or an unlimited fine. There are additional penalties a court can impose on certain public officials for a breach of 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 ten 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 existing legislation, the Bill strengthens these provisions by allowing the courts to order the forfeiture of assets equal to the value of any bribe received. I am pleased to be providing for a number of recommendations from the Mahon tribunal. For instance, the Bill provides for a new offences 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 also intended to enhance the ability of the Director of Public Prosecutions, DPP, 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, for example, where an applicant for planning permission makes a payment to a planning official. This presumption will also now apply to payments made to persons connected to the official, such as family members and close business associates of that official.

Turning to the detail of the Bill, I wish to outline its key provisions. Section 2 defines the key terms used in the Bill, such as "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 Part 4 of the Bill which contains 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 2010 Prevention of Corruption (Amendment) Act.

Section 5 of the Bill 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. These offences may be prosecuted under this section and 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 so that 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 its evaluation of Ireland's implementation of the OECD anti-bribery convention.

Section 6 gives effect to a recommendation from the Council of Europe. It provides for a discrete offence of trading in influence, which prohibits the promise of an undue advantage to someone who asserts they can exert an improper influence over a public official's decision-making capacity. Like the corruption offence, this section covers both active and passive trading in influence. Subsection (3) makes it clear that it is immaterial whether the alleged ability to exert improper influence existed or whether the supposed influence led to the intended result. The provision in regard 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 anybody. It differs from the main corruption offence in that it is not required that another party is involved. A new provision in subsection (2) makes it an offence to use confidential information obtained through their office for this very purpose. This new provision reflects a recommendation of the Mahon tribunal.

Also giving effect to a recommendation from the Mahon tribunal, section 8 contains a new offence of giving a gift etc. to another person where the donor knows or ought to reasonably know that the payment might be used to facilitate the 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, 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 regard 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 regard to the jurisdiction of the State in circumstances where elements of the corruption offence take place outside the State or indeed only partly within 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) of section 12 are additional provisions inserted to give full effect to Article 7 of the European Convention on fighting corruption, and to address certain jurisdictional requirements in this regard.

Section 13 simply states that where an offence was committed outside the State proceedings may be taken in any place within the State.

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 under way. 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. The standard of proof is the civil one, which is the balance of probabilities. These provisions are 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 can be 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.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. The functions of Irish officials regarding 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(i). That 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, that is, 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. Article 20 of the UN Convention against corruption required Ireland to consider such a measure. There are some new components in Part 5 of which 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 a person when convicted of a corruption offence under the Bill. The offence of trading in influence carries a maximum of five 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 ten 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 person found guilty on indictment may be prohibited from seeking certain public offices for up to ten years. The penalties for bodies corporate under the section 18 strict liability offence are fines.

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 regarding a person's citizenship shall be evidence that this is the case. This would be particularly relevant to corruption offences occurring outside the State. Section 20 relates to the seizure of a suspected bribe, and section 21 enables a Circuit Court judge to order the forfeiture of seized property. Section 22 says that provisions contained in sections of the Criminal Justice Act 1994 will apply to seizure and forfeiture provisions contained in this Bill.

Part 6 covers miscellaneous matters, including providing for consequential amendments to other legislation as a result of the amendments in this Bill. Sections 23 to 28, inclusive, update the references in other legislation, as appropriate to realisable property, corrupt conduct, corruption offences, offences against the administration of justice and relevant offences. I should specifically mention the provision in section 26 which was introduced in the Dáil as a Report Stage amendment. The OECD had recommended that Ireland remove the dual criminality requirement for the bribery of a foreign official as a predicate to money laundering. Paragraph (c) of the definition of criminal conduct now provides for that.

Sections 29 to 33, inclusive, will amend legislation relating to the election or removal of Deputies, 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, the Bill before the House marks a significant improvement to our laws against corruption. By repealing laws that date back to the 19th century, I am happy to be bringing forward a comprehensive and easy to access modern statute. 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. I have said before that the reputation of a State and its business community can be affected by the rigour with which it tackles corruption. Too often, the public believes that comprehensive reports produced by or for Government end up being stacked on shelves. This Bill shows that, in terms of corruption, that is clearly not the case. It is a clear response to a number of international evaluation reports regarding corruption prevention in Ireland. It is a clear demonstration of our engagement with international efforts at the United Nations, the OECD, the European Union and the Council of Europe to tackle the problem head on. 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. In enacting this Bill, the Oireachtas will be sending out a strong message that we treat corruption prevention extremely seriously.

Finally, I should inform Seanadóirí that Ireland will be subject to a number of international reporting processes on preventing and tackling corruption in June this year. This Bill will be evaluated by the United Nations, the Council of Europe and the OECD. I hope that we can have it enacted before those evaluations commence and I seek all-party support in this House to make that happen. I believe it will stand up to scrutiny and we will be proud of having a comprehensive, strict and fair statute enacted to address corruption in Ireland. In the meantime, I look forward to an intense debate on this measure and I commend the Bill to the House.