Newly introduced white collar crime legislation that attracted criticism for measures on bribery offences is to be reviewed by the Organisation for Economic Co-operation and Development (OECD).
The Criminal Justice (Corruption Offences) Act, introduced by the Government last summer, were hailed by the Department of Justice as a complete overhaul of anti-corruption law.
However, ahead of its enactment, concerns were flagged by both gardaí and the Department of Foreign Affairs regarding its ability to sufficiently enforce bribery offences by State officials and businesses in foreign countries.
Concerns were raised that the legislation fell short of the OECD's Convention on Combating Bribery of Foreign Public Officials.
The OECD has said its working group on bribery will begin a formal review of the new law in the first half of this year in order to “assess compliance with the Convention”. It said such a review was standard and was not a direct response to the concerns raised.
However, it will go some way to assess issues identified in the run-up to the enactment of the legislation last year.
The new laws include a requirement for “dual criminality” – which means that in order to be prosecuted, bribes deemed illegal under Irish law must also be an offence in the countries in which they take place.
Allegation of corruption
In a letter to the department last year, the Garda National Economic Crime Bureau – which investigates corruption both at home and abroad – noted the State would have to prove an allegation of corruption occurring overseas was also an offence in that country.
It is our duty in the developed world to do everything in our power to ensure that our citizens and businesses are not engaged in bribery and corruption
“In other words, if Irish persons or companies are operating in a jurisdiction where anti-corruption legislation is weak or non-existent, then no offence occurs, which appears to go against the whole ethos of the OECD convention on foreign bribery and corruption,” it said.
An accompanying Garda report submitted to the department said bribery and corruption is more prevalent in developing countries. “It is our duty in the developed world to do everything in our power to ensure that our citizens and businesses are not engaged in bribery and corruption,” it said.
The Garda report noted that Ireland had never prosecuted a case of foreign bribery "and has been continuously criticised for this and for not having a proactive approach to tackling foreign bribery and corruption" by various international agencies. In fact, it noted, law covering the area prior to the new Act was more effective.
The documents were obtained under Freedom of Information legislation.
Separately, the Department of Foreign Affairs, in a letter to the Department of Justice, said the requirement of dual criminality could “frustrate achievement of objectives of the OECD convention”.
“It is quite possible that in many developing states in which attempts may be made to bribe public officials, this activity may not be a criminal offence and may in fact be a widely accepted part of the business culture,” it submitted in observations on the draft legislation. “A dual criminality element to the offence in Irish law may therefore frustrate a prosecution here.”
Amendment
A similar OECD review of dual criminality in New Zealand had previously led to calls for its amendment. The OECD found its inclusion was inconsistent with the convention, the Department noted.
In response, the Department of Justice said the Act “represents a major overhaul of corruption legislation” and that the issues as set out did not arise as “most countries have legislation that criminalises corruption”.
It said the concerns were discussed with the Office of the Attorney General.
“Taking into account the generally recognised principles of international law, section 12(2)(c) was retained in its current form.”
It said it takes its responsibilities under the OECD convention on foreign bribery “very seriously” and has agreed the laws will be subject to evaluation in 2019.
“We will consider fully any recommendations that the OECD issues following the evaluation,” it said.
