Prevention of Corruption (Amendment) Act 2010

1. Definition.

1.— In this Act, “Act of 2001” means the Prevention of Corruption (Amendment) Act 2001.

2. Amendment of section 1 of Prevention of Corruption Act 1906.

2.— Section 1 (inserted by section 2 of the Act of 2001) of the Prevention of Corruption Act 1906 is amended—

(a) in subsection (2), by substituting “, consideration or advantage” for “or consideration”, and

(b) in subsection (5)—

(i) in the definition of “agent”—

(I) in paragraph (c), in subparagraph (ix), by deleting “and”, and

(II) in paragraph (c), by substituting the following subparagraphs for subparagraph (x):

“(x) any other person employed by or acting on behalf of the public administration of any state (other than the State), including a person under the direct or indirect control of the government of any such state, and

(xi) a member of, or any other person employed by or acting for or on behalf of, any international organisation established by an international agreement between states to which the State is not a party;”,

and

(ii) by inserting the following definitions:

“ ‘corruptly’ includes acting with an improper purpose personally or by influencing another person, whether by means of making a false or misleading statement, by means of withholding, concealing, altering or destroying a document or other information, or by any other means;

‘state’, in relation to a state other than the State, includes—

(a) a territory, whether in the state or outside it, for whose external relations the state or its government is wholly or partly responsible,

(b) a subdivision of the government of the state, and

(c) a national, regional or local entity of the state.”.

3. Amendment of section 7 of Act of 2001.

3.— Section 7 of the Act of 2001 is amended—

(a) in subsection (1)—

(i) by inserting “(whether or not the person is an agent)” after “where a person”, and

(ii) by substituting “the relevant section” for “section 1 (inserted by section 2 of this Act) of the Act of 1906”,

and

(b) by substituting the following subsections for subsection (2):

“(2) Subsection (1) shall apply only where the person concerned is—

(a) an Irish citizen,

(b) an individual who is ordinarily resident in the State,

(c) a company registered under the Companies Acts,

(d) any other body corporate established under a law of the State, or

(e) a relevant agent in any case where the relevant agent does not fall within any of paragraphs (a) to (d).

(3) In this section—

‘agent’ has the meaning assigned to it by subsection (5) of the relevant section;

‘ordinarily resident in the State’, in relation to an individual, means the individual has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence concerned under subsection (1);

‘relevant agent’ means a person who falls within paragraph (b) of the definition of ‘agent’ in subsection (5) of the relevant section;

‘relevant section’ means section 1 (inserted by section 2 of this Act and as amended by section 2 of the Prevention of Corruption (Amendment) Act 2010) of the Act of 1906.”.

4. Insertion of new section 8A into Act of 2001.

4.— The Act of 2001 is amended by inserting the following section after section 8:

“Protection for persons (including employees) reporting offences under Prevention of Corruption Acts 1889 to 2010.

8A.— (1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to an appropriate person of his or her opinion that an offence under the Prevention of Corruption Acts 1889 to 2010 may have been or may be being committed unless—

(a) in communicating his or her opinion to that appropriate person did so—

(i) knowing it to be false, misleading, frivolous or vexatious, or

(ii) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(b) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading.

(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to any other form of relief.

(3) A person who makes a communication under subsection (1), which the person knows to be false, that a person may have committed or may be committing an offence under the Prevention of Corruption Acts 1889 to 2010 shall be guilty of an offence.

(4) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any enactment or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is an appropriate person or not) of an opinion of the kind referred to in subsection (1).

(5) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for—

(a) having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to an appropriate person unless the employee—

(i) in communicating his or her opinion to that appropriate person did so—

(I) knowing it to be false, misleading, frivolous or vexatious, or

(II) reckless as to whether it was false, misleading, frivolous or vexatious,

or

(ii) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading,

or

(b) giving notice of his or her intention to do the thing referred to in paragraph (a).

(6) Schedule 1 shall have effect in relation to an alleged contravention of subsection (5).

(7) An employer who contravenes subsection (5) shall be guilty of an offence.

(8) A person guilty of an offence under subsection (3) or (7) shall be liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 3 years or both.

(9) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence referred to in subsection (8) as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (8)(a) and the reference in subsection (2)(a) of that section to the penalties provided for by subsection (3) of that section shall be construed and have effect accordingly.

(10) Any person who, upon examination on oath or affirmation authorised under paragraph 3(1) of Schedule 1, wilfully makes any statement which is material for that purpose and which the person knows to be false or does not believe to be true shall be guilty of an offence and liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.

(11) A person to whom a notice under paragraph 3(2) of Schedule 1 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence and liable on summary conviction to a fine not exceeding €5,000.

(12) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—

(a) a person named in the document was, by a notice under paragraph 3(2) of Schedule 1, required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both,

(b) a sitting of the Labour Court was held on that day and at that time and place, and

(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or wilfully failed to produce the document,

shall, in a prosecution of the person under subsection (11), be evidence of the matters so stated without further proof unless the contrary is shown.

(13) For the purposes of this section, a reference to ‘dismissal’ includes—

(a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and

(b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.

(14) Schedule 2 shall have effect for the purposes of a communication referred to in this section made to an appropriate person who is a confidential recipient.

(15) Paragraphs (a), (c), (d), (e) and (f) of the definition of ‘penalisation’ in subsection (16) shall not be construed in a manner which prevents an employer from—

(a) ensuring that the business concerned is carried on in an efficient manner, or

(b) taking any action required for economic, technical or organisational reasons.

(16) In this section—

‘appropriate person’, in relation to a communication referred to in this section made by a person, means a communication to—

(a) in any case, a member of the Garda Síochána,

(b) in any case where the opinion concerned of the kind referred to in subsection (1) was formed in the course of the person’s employment—

(i) the person’s employer, or

(ii) a person nominated by such employer as the person to whom a communication of that kind may be made,

(c) without prejudice to the generality of paragraphs (a) and (b), in any case where the person is in a state other than the State—

(i) a diplomatic or consular officer of the State who is in that state, or

(ii) a member of a law enforcement agency of that state,

or

(d) in any case where the person wishes to make the communication in confidence, to a confidential recipient;

‘confidential recipient’ has the meaning assigned to it by paragraph 1 of Schedule 2;

‘contract of employment’ means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

‘employee’ means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

‘employer’, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—

(a) a person (other than an employee of that person) under whose control and direction an employee works, and

(b) where appropriate, the successor of the employer or an associated employer of the employer;

‘penalisation’ means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal,

(b) the threat of suspension, lay-off or dismissal,

(c) demotion or loss of opportunity for promotion,

(d) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty),

(f) unfair treatment, including selection for redundancy,

(g) coercion, intimidation or harassment,

(h) discrimination, disadvantage or adverse treatment,

(i) injury, damage or loss, and

(j) threats of reprisal.”.

5. Amendment of section 9 of Act of 2001.

5.— The Act of 2001 is amended by substituting the following section for section 9:

“Offences — general.

9.— (1) Where an offence under the relevant Acts has been committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, a person who was either—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person purporting to act in any such capacity,

that person shall also be guilty of an offence and liable to be proceeded against and punished as if the person were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in respect of the acts or defaults of a member in connection with the member’s functions of management as if the member were a director or manager of the body corporate.

(3) Subsections (1) and (2) shall, with any necessary modifications, apply in respect of offences under the relevant Acts committed by an unincorporated body.

(4) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under the relevant Acts to which that provision applies may be instituted—

(a) within 12 months from the date on which the offence was committed, or

(b) within 6 months from the date on which evidence sufficient, in the opinion of the person instituting the proceedings, to justify proceedings comes to that person’s knowledge,

whichever is the later, provided that no such proceedings shall be commenced later than 2 years from the date on which the offence concerned was committed.

(5) For the purposes of subsection (4), a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence referred to in that subsection came to his or her knowledge shall be evidence of that date and, in any legal proceedings, a document purporting to be a certificate under this subsection and to be so signed shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

(6) In this section, ‘relevant Acts’ means the Prevention of Corruption Acts 1889 to 2010.”.

6. Insertion of new Schedules into Act of 2001.

6.— The Act of 2001 is amended by inserting the following Schedules after section 10:

“SCHEDULE 1

Complaints to rights commissioner.

(2) Where a complaint under subparagraph (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(c) notify the parties of that decision.

(3) A decision of a rights commissioner under subparagraph (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to take a specified course of action, which may include, in a case where the penalisation constitutes a dismissal within the meaning of section 8A(13), re-instatement or re-engagement;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977;

and the references in clauses (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) Subject to subparagraph (10), a rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 6 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances.

(6) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister for Enterprise, Trade and Innovation.

(7) A copy of a notice under subparagraph (6) shall be given to the other party concerned by the rights commissioner.

(8) Proceedings under this paragraph before a rights commissioner shall be conducted otherwise than in public.

(9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subparagraph (2).

(10) Where a delay by an employee in presenting a complaint under this paragraph is due to any misrepresentation by the employer, subparagraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the employee’s notice.

Appeals from decisions of rights commissioner.