On August 26, the Irish Times reported that the Irish Department of Justice has concluded that the Criminal Justice (Corruption Practices) Act 2018, which extensively revised Irish criminal law on corruption offenses (including foreign bribery), is not in conformity with the Organization for Economic Co-Operation and Development (OECD) Anti-Bribery Convention.
The crux of the problem, according to the Times, is that the 2018 Law “includes a requirement that the offence be a crime both in Ireland and in the country where the bribery allegedly occurred, a requirement called ‘dual criminality’.” In 2018, the Garda National Economic Crime Bureau sent a letter to the Department of Justice in which it called attention to the dual criminality problem. In that letter, the Garda stated:
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 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.
A spokesman for the Department of Justice noted that the text of the OECD Convention “is silent on the issue of dual criminality,” but acknowledged that the OECD Working Group on Bribery, of which Ireland is a member, “found that dual criminality requirements for the foreign bribery offence by their very nature compel the consideration of foreign law and its application to the facts of the case.” Accordingly, those requirements are “inconsistent with article one of the convention, which requires an autonomous foreign bribery offence.”
Ireland is due for an OECD Working Group evaluation in October 2019. On that point, the Department of Justice spokesman said that “Ireland will consider fully any recommendations that the working group makes from that evaluation.” An OECD spokeswoman reportedly stated that “it would be in a much better position to comment on the Irish law after the review.”
Note: The inclusion of the dual-criminality language in the Act apparently was not an oversight, but a decision by Irish Minister for Justice Charlie Flanagan “on the advice of the Attorney General that Ireland exercises extraterritorial jurisdiction on the basis that dual criminality is required.” Nonetheless, the Department now appears inclined to address that issue.
Although the Department of Justice spokesman referred to the Department considering recommendations by the OECD Working Group after its evaluation, the Department should prepare and present its own proposals for legislative change during that evaluation. Being proactive with the Working Group can do no harm, and is likely to do Ireland some good.