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The Government, yesterday, approved the general scheme of the Criminal Justice (Corruption) Bill 2012. The Bill, when enacted, will clarify and strengthen the law criminalising corruption. It will replace seven overlapping corruption Acts stretching back to Victorian times. The general scheme of the Bill is being referred to the Joint Oireachtas Committee on Justice, Defence and Equality for its consideration prior to formal drafting by the Office of the Parliamentary Counsel to the Government.

The Bill will replace and update existing offences relating to giving or receiving bribes. It will also introduce new offences in relation to corrupt influence peddling.

Stiff penalties of up to 10 years imprisonment and unlimited fines are envisaged for persons convicted on indictment. In addition the Courts are to be given new powers to remove public officials from office and to exclude them from holding office for up to 10 years.

Head 18 provides significant, far-reaching provisions for public officials such as Ministers, TDs or civil servants who are convicted of a corruption offence. It provides that they could be the subject of a court order to forfeit their office and be excluded from seeking such office for up to 10 years. This provision has implications for the constitutional balance of power between the judiciary, the legislature and the electorate. For that reason, the Joint Oireachtas Committee is being requested to have particular regard to this provision in the context of current constitutional provisions and court decisions and to make appropriate observations and recommendations.

The recommendations of the Mahon Tribunal have been taken into account in provisions to be contained in the Bill such as a new offence of making payments knowingly or recklessly to a third party who intends to use them as bribes.

It is intended to enhance the ability of the Director of Public Prosecutions (DPP) to bring prosecutions by providing for the presumption of corruption where:

· a person with an interest in the functions being discharged by a public official makes a payment to the official (e.g. where an applicant for planning permission makes a payment to a planning official);

· a public official has a lifestyle or property out of proportion to their official income and declared interests; and

· a public official accepts a gift in breach of ethics.

Suspected bribes can be seized and forfeited under current legislation. These provisions will be strengthened by allowing courts to order the forfeiture of assets equal to the value of any bribe given or received.

On publishing the scheme of the Bill the Minister for Justice, Equality and Defence, Alan Shatter TD, said, “The Government is determined that corruption in any form will not be tolerated. Ireland must be a country and be seen as a country where business and public life can only be undertaken honestly and openly. Those engaged in business and politics have nothing to fear and everything to gain from the maintenance of proper ethical standards.”

The general scheme of the Bill is being published in line with the commitment contained in the programme for Government. Its publication will allow the Joint Oireachtas Committee on Justice, Defence and Equality and any interested members of the public to consider and comment on the scheme before the full Bill is drafted by the Parliamentary Counsel to the Government.

20 June 2012

Note for Editors

The general scheme sets out the proposed essential elements of a Bill reflecting the policy decisions of the Government. The final structure and wording of the Bill will be developed by the Office of the Parliamentary Counsel to the Government (OPC) in consultation with Advisory Counsel of the Attorney General’s Office and the Department of Justice and Equality. The final wording of any Bill will differ from that of its scheme as legal issues and technicalities are worked out in the formal drafting process. When a final draft of a Bill is approved by the OPC it is submitted to Government for approval before its formal publication and introduction to the Houses of the Oireachtas for debate.

Publication of the general scheme and referral to the Joint Oireachtas Committee on Justice, Defence and Equality will allow the Committee and the public to consider and comment on all of the issues prior to the formal drafting process.

Main Provisions of the Bill

The scheme of the Bill will address offences committed by persons in the private sector and public sector. Certain presumptions and penalties will apply to “Irish public officials”. The definition of “Irish public officials” includes all Ministers, Members of the Houses of the Oireachtas, civil and public servants, judges, local authority members and staff as well as the Directors of companies. The inclusion of Members of the Houses of the Oireachtas in this way gives effect to one of the recommendations of the Mahon Tribunal.

OFFENCES

The scheme provides for the following main offences:

Active Corruption (Head 2) – applies to any person corruptly offering a bribe to a person for doing an act in relation to his or her office, employment, position or business. The offence aims to cover corruption regardless of whether it occurs in the public or private sector.

Passive Corruption (Head 2) – applies to any person corruptly accepting a bribe for doing an act in relation to his or her office, employment, position or business. The offence aims to cover corruption regardless of whether it occurs in the public or private sector.

Active Trading In Influence (Head 3) – applies to any person corruptly offering a bribe in order to induce a person to exert improper influence on a public official.

Passive Trading in Influence (Head 3) – applies to any person who corruptly accepts a bribe to improperly influence a public official. This offence would apply, for example, to a middle man who seeks a bribe in return for a promise to wrongly influence a planning official.

Corruption in Office (Head 4) – this pertains to an Irish public official using their position to obtain a bribe. This explicitly provides for a recommendation of the Mahon Tribunal concerning the misuse of confidential information for private gain.

Bribery of a Foreign Public Official (Head 5) – applies to any person corruptly offering a bribe on account of a foreign public official person doing an act in relation to his or her position.

Making Reckless Payments (Head 6) – this has been added in light of a recommendation of the Mahon Tribunal to incriminate the making of payments to a third party while knowing or being reckless as to whether that third party intends to use the payments to pay bribes.

Using a Document to Deceive (Head 7) – applies to any person corruptly using a false document to induce a person to do an act in relation to his or her office, employment, position or business.

Intimidation (Head 8) – applies to any person corruptly threatening harm to a person with the intention to influence any act or omission.

Corruption Occurring Outside the State (Head 9) – makes it an offence for an Irish official, citizen, resident or company to do something outside the State which would amount to an offence if done in Ireland.

PRESUMPTIONS

In light of Mahon Tribunal recommendations, the presumptions contained in the existing legislation have been expanded to cover donations made to political parties and payments or gifts to family members and close associates of public officials. The presumptions will apply to impermissible political donations as well as undeclared donations.

A new aspect to the scheme covers a situation where a public official receives a payment in breach of a relevant code of ethics or discipline - in future this will be presumed to be a bribe.

Also new is a presumption of corrupt enrichment which is to apply where a public official’s lifestyle or property is out of proportion with his or her official income or registered interests.

CORPORATE BODIES

The Bill will also contain an important new provision whereby a corporate body can be held criminally liable where an officer or employee of the body commits a corruption offence with the intention of obtaining a business advantage for the body. It also provides a defence of taking all reasonable steps and exercising all due diligence to avoid commission of the offence. These provisions give effect to recommendations of the Mahon Tribunal.

The scheme also provides for senior company officials to be personally liable where the company commits an offence with their connivance. This replicates a similar provision in the 2010 Act.

PENALTIES

The penalties for trading in influence offences are 12 months/Class A fine on summary conviction and 5 years/unlimited fine upon conviction on indictment.

The penalties for all the other main offences are 12 months/Class A fine on summary conviction and 10 years/unlimited fine upon conviction on indictment. This level of penalty is in keeping with that provided in the 1889 to 2010 Acts.

Provision is made for the forfeiture of any bribe, or the value of any bribe, related to the offence.

The scheme also provides in Head 18 for a court to order a relevant public official (including any Minister, TD, Civil Servant, County Councillor or Company Director) to forfeit his or her position if convicted of a corruption offence. A court may apply this penalty where it is in the interest of maintaining or restoring public confidence in the public administration of the State and where it is in the interest of justice to do so. In the event that a court orders an official to forfeit his or her position it may decide on how long a period (up to ten years) he or she should be excluded from seeking any public office.

The definition of “relevant Irish public official” excludes judges and members of the Garda Ombudsman Commission as the Constitution and the Garda Síochána Act 2005 respectively provide for impeachment by the Houses of the Oireachtas for their removal from office.

Seizure and Forfeiture of Bribes

There are also general provisions for the seizure of suspected bribes and the forfeiture of bribes on the civil standard of proof as was provided by the 2001 Act.

Whistleblower Protection

The scheme contains a provision for the protection of whistleblowers based on that contained in the 2010 Act. This provision is inserted as a placeholder in the event that this Bill proceeds to enactment prior to the Protected Disclosures in the Public Interest Bill. It will be amended or removed as appropriate to align with the Protected Disclosures Bill.

Provision is also made for an amendment to the Garda Síochána Act 2005. This too relates to whistleblower protection and will allow for the necessary adaptations to the internal reporting mechanisms in the Garda Síochána as well as the redress mechanisms.