White Collar Crime Update: Power Corrupts
16 November 2017
The Irish Government, through the Departments of Business, Finance and Justice, has identified four distinct themes in order to strengthen the existing regulatory and legislative framework to deal with corruption, money laundering and other financial abuses:
- Organisational and procedural reform
- Corporate governance
- Enhancing regulatory powers to deal with offences in the financial sector, and
- Countering money laundering and corruption
The main actions include:
- Re-establishing the Office of the Director of Corporate Enforcement (ODCE) and enhancing its independence
- Establishing a Joint Agency Task Force led by An Garda Síochána on a pilot basis to tackle criminality. Its initial focus will be on payment fraud, including invoice redirection fraud and credit card fraud
- Enacting the Criminal Justice (Corruption Offences) Bill, which is a major reforming piece of legislation introducing new offences and penalties
- Publishing and enacting a Criminal Procedure Bill, to streamline criminal procedures and improve efficiencies
- Implementing the Markets in Financial Instruments Directive II (MiFID II)
- Evaluating the application of the Protected Disclosures Act in this area
- Reviewing regularly through the Oireachtas the implementation of these measures and the enhancement of the regulatory environment.
There is now an extensive range of legislation and regulation affecting every business in Ireland, from sole traders to corporations. Aside from the enforcement of company law, the development and implementation of anti-corruption policies, in particular, does not rest with any single body. The responsibility and competence to prevent, detect, investigate and prosecute corruption is spread across An Garda Síochána and a number of other agencies, who have been given a specific mandate to tackle corruption.
The proposed legislation repeals a range of legislation dating from 1889 which applies to ethics, political funding, anti-money laundering and the recent Companies Act. Penalties of up to 10 years imprisonment and unlimited fines are provided for, together with the power to remove public servants and elected politicians from office. New offences of making payments knowingly or recklessly to a third party, so allowing them to be used as bribes, and using confidential information to obtain an advantage corruptly, are created. This will make it incumbent on every organisation, large and small, to ensure its activities are run in an ethical manner.
Good corporate governance must now include as a ‘given’ the establishment and implementation of clear policies and procedures designed to deal with corruption, money laundering and other financial abuses. In order to defend themselves against a charge of ‘passive’ corruption under the new legislation and the various presumptions of criminality now outlined, a company and its directors will have to prove that they took “all reasonable steps and exercised all due diligence to avoid the commission of the offence”. The Corruption Bill further imposes liability on directors and senior officers even though the offence may have been committed by the company, rather than by them personally.
It is fair to say that many of the reforms announced are in essence rebranded versions of already-established measures. For instance, it is five years since the Irish Government first published the general scheme of the proposed Corruption Bill. However, these reforms are long overdue. If implemented and properly resourced, they will represent a holistic approach to strengthening Ireland’s regulatory and enforcement regime. The reforms are essential to protect Ireland’s international reputation as a safe business environment, free from corruption.
Specialist legal advice should be sought when interpreting the new legislation and implementing measures to ensure full compliance. For more information and assistance, contact our Investigations & White Collar Crime team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.