International Investigations Review - Ireland chapter


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A comprehensive review of corporate investigation practice and relevant legislation in Ireland.

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International Investigations Review - Ireland chapter

  1. 1. The International Investigations Review Law Business Research Third Edition Editor Nicolas Bourtin
  2. 2. The International Investigations Review Reproduced with permission from Law Business Research Ltd. This article was first published in The International Investigations Review, 3rd edition (published in July 2013 – editor Nicolas Bourtin). For further information please email
  3. 3. The International Investigations Review Third Edition Editor Nicolas Bourtin Law Business Research Ltd
  4. 4. The Mergers and Acquisitions Review The Restructuring Review The Private Competition Enforcement Review The Dispute Resolution Review The Employment Law Review The Public Competition Enforcement Review The Banking Regulation Review The International Arbitration Review The Merger Control Review The Technology, Media and Telecommunications Review The Inward Investment and International Taxation Review The Corporate Governance Review The Corporate Immigration Review The International Investigations Review The Projects and Construction Review The International Capital Markets Review The Law Reviews
  5. 5. The Real Estate Law Review The Private Equity Review The Energy Regulation and Markets Review The intellectual property Review The asset management review THE PRIVATE WEALTH AND PRIVATE CLIENT REVIEW The mining law review the executive remuneration review The anti-bribery and anti-corruption review The Cartels and leniency review The Tax Disputes and Litigation review The lIfe sciences law review The Insurance and Reinsurance law review The Government Procurement Review The Dominance and Monopolies Review
  6. 6. Publisher Gideon Roberton business development managerS Adam Sargent, Nick Barette marketing managerS Katherine Jablonowska, Thomas Lee, James Spearing publishing assistant Lucy Brewer PRODUCTION COORDINATOR Lydia Gerges HEAD OF EDITORIAL PRODUCTION Adam Myers PRODUCTION editor Robbie Kelly subeditor Jonathan Allen editor-in-chief Callum Campbell managing director Richard Davey Published in the United Kingdom by Law Business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, UK © 2013 Law Business Research Ltd No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of July 2013, be advised that this is a developing area. Enquiries concerning reproduction should be sent to Law Business Research, at the address above. Enquiries concerning editorial content should be directed to the Publisher – ISBN 978-1-907606-72-4 Printed in Great Britain by Encompass Print Solutions, Derbyshire Tel: 0844 2480 112
  7. 7. i The publisher acknowledges and thanks the following law firms for their learned assistance throughout the preparation of this book: ALUKO & OYEBODE Anagnostopoulos Bowman Gilfillan Inc Cassels Brock & Blackwell LLP CHAVES AWAD CONTRERAS SCHÜRMANN Debevoise & Plimpton LLP Dr Kai Hart-HÖnig RechtsanwAlt Estudio Durrieu Abogados SC Fangda Partners GILBERT + TOBIN Linklaters Martin Kenney & Co Solicitors Mason Hayes & Curran Motieka & Audzevičius PETER YUEN & ASSOCIATES IN ASSOCIATION WITH FANGDA PARTNERS Schellenberg Wittmer Ltd Sérvulo & Associados – Sociedade de Advogados, RL acknowledgements
  8. 8. Acknowledgements ii Setterwalls Advokatbyrå AB Sjöcrona Van Stigt Stephenson Harwood Studio Legale Pulitanò-Zanchetti Sullivan & Cromwell LLP Uría Menéndez WongPartnership LLP
  9. 9. iii Editor’s Preface ��������������������������������������������������������������������������������������������������vii Nicolas Bourtin Chapter 1 Argentina�����������������������������������������������������������������������������1 Roberto A Durrieu and Federico de Achával  Chapter 2 Australia�����������������������������������������������������������������������������11 Rani John, Elizabeth Avery and Peter Feros Chapter 3 Belgium��������������������������������������������������������������������������������37 Françoise Lefèvre and Johan Verbist Chapter 4 British Virgin Islands�������������������������������������������������52 Martin S Kenney Chapter 5 Canada���������������������������������������������������������������������������������65 Wendy Berman and Jonathan Wansbrough Chapter 6 Chile��������������������������������������������������������������������������������������86 Miguel Chaves, Alejandro Awad, Marcos Contreras and Miguel Schürmann Chapter 7 China�������������������������������������������������������������������������������������98 Benjamin Miao, Peter Yuen and Melody Wang Chapter 8 England Wales����������������������������������������������������������111 Tony Woodcock Chapter 9 france��������������������������������������������������������������������������������122 Antoine Kirry and Frederick T Davis contents
  10. 10. iv Contents Chapter 10 Germany����������������������������������������������������������������������������134 Kai Hart-Hönig Chapter 11 greece��������������������������������������������������������������������������������142 Ilias G Anagnostopoulos and Jerina (Gerasimoula) Zapanti  Chapter 12 hong kong����������������������������������������������������������������������150 Peter Yuen Chapter 13 ireland������������������������������������������������������������������������������166 Catherine Allen Chapter 14 italy�������������������������������������������������������������������������������������177 Mario Zanchetti  Chapter 15 lithuania��������������������������������������������������������������������������189 Ramūnas Audzevičius, Beata Kozubovska and Rimantas Daujotas Chapter 16 netherlands������������������������������������������������������������������199 Alexander de Swart and Max Vermeij Chapter 17 Nigeria��������������������������������������������������������������������������������208 Babatunde Fagbohunlu, Irene Robinson-Ayanwale, Rebecca Dokun and Stephen Nwoye Chapter 18 portugal���������������������������������������������������������������������������220 José Lobo Moutinho, Teresa Serra and Raul Taborda Chapter 19 singapore�������������������������������������������������������������������������230 Joy Tan and Koh Swee Yen Chapter 20 south africa�������������������������������������������������������������������256 Matthew Purchase Chapter 21 spain�������������������������������������������������������������������������������������269 Ismael Clemente and Alicia Franch
  11. 11. v Contents Chapter 22 sweden�������������������������������������������������������������������������������284 Ulf Djurberg and Erik Hellners Chapter 23 Switzerland�������������������������������������������������������������������292 Benjamin Borsodi and Carla Reyes Chapter 24 United States�����������������������������������������������������������������303 Nicolas Bourtin and Nathaniel Green Appendix 1 About the Authors�����������������������������������������������������315 Appendix 2 Contributing Law Firms’ Contact Details���331
  12. 12. vii Editor’s Preface In the United States, it continues to be a rare day when newspaper headlines do not announce criminal or regulatory investigations or prosecutions of major financial institutions and other corporations. LIBOR. Foreign corruption. Financial fraud. Tax evasion. Price fixing. Environmental crimes. Export controls and other trade sanctions. US and non-US corporations alike, for the past several years, have faced increasing scrutiny from US authorities, and their conduct, when deemed to run afoul of the law, has been punished severely by record-breaking fines and the prosecution of corporate employees. Already complex interlocking legal and regulatory regimes have become even more labyrinthine with the passage of new laws in the wake of the economic crisis, and the compliance burdens imposed on corporations have grown ever more onerous. This trend has by no means been limited to the US; while the US government continues to lead the movement to globalise the prosecution of corporations, a number of non-US authorities appear determined to adopt the US model. Parallel corporate investigations in multiple countries increasingly compound the problems for companies, as conflicting statutes, regulations and rules of procedure and evidence make the path to compliance a treacherous one. What is more, government authorities forge their own prosecutorial alliances and share evidence, further complicating a company’s defence. These trends show no sign of abating. As a result, corporate counsel around the world are increasingly called upon to advise their clients on the implications of criminal and regulatory investigations outside their own jurisdictions. This can be a daunting task, as the practice of criminal law – particularly corporate criminal law – is notorious for following unwritten rules and practices that cannot be gleaned from a simple review of a country’s criminal code. And while nothing can substitute for the considered advice of an expert local practitioner, a comprehensive review of the corporate investigation practices around the world will find a wide and grateful readership. The authors of this volume are acknowledged experts in the field of corporate investigations and leaders of the bars of their respective countries. We have attempted to distil their wisdom, experience and insight around the most common questions
  13. 13. viii Editor’s Preface and concerns that corporate counsel face in guiding their clients through criminal or regulatory investigations. Under what circumstances can the corporate entity itself be charged with a crime? What are the possible penalties? Under what circumstances should a corporation voluntarily self-report potential misconduct on the part of its employees? Is it a realistic option for a corporation to defend itself at trial against a government agency? And how does a corporation manage the delicate interactions with the employees whose conduct is at issue? The International Investigations Review answers these questions and many more and will serve as an indispensable guide when your clients face criminal or regulatory scrutiny in a country other than your own. And while it will not qualify you to practise criminal law in a foreign country, it will highlight the major issues and critical characteristics of a given country’s legal system and will serve as an invaluable aid in engaging, advising and directing local counsel in that jurisdiction. We are proud that in its third edition, this volume covers 24 countries. This volume is the product of exceptional collaboration. I wish to commend and thank our publisher and all the contributors for their extraordinary gift of time and thought. The subject matter is broad and the issues raised deep, and a concise synthesis of a country’s legal framework and practice was in each case challenging. Nicolas Bourtin Sullivan Cromwell LLP New York July 2013
  14. 14. 166 Chapter 13 ireland Catherine Allen1 I INTRODUCTION A wide range of regulatory and other authorities are empowered to investigate and prosecute corporate conduct in Ireland, including An Garda Síochána (the Irish police force), the Garda Bureau of Fraud Investigation, the Central Bank of Ireland, the Director of Public Prosecutions (‘the DPP’), the Director of Corporate Enforcement (‘the DCE’), the Revenue Commissioners and the Competition Authority. The DPP is solely responsible for the prosecution of indictable offences. Within the Irish criminal justice system the DPP has no investigative function; the investigation of criminal offences is the function of An Garda Síochána and other regulatory bodies. The DCE is the core body responsible for investigating company law offences and it has wide investigative powers. Members of An Garda Síochána are seconded to the Office of the Director of Corporate Enforcement (‘ODCE’) to assist the DCE in this regard.2 The DCE was established pursuant to Section 7 of the Company Law Enforcement Act 2001 (‘CLEA 2001’). Section 12 of the CLEA 2001 empowers the DCE to investigate instances of suspected offences under the Companies Acts 1963–2012 (‘CA 1963–2012’) and to do so the DCE is given a broad range of powers, including the following: a apply for a search warrant permitting it to enter and search premises to seek information material to the investigation;3 1 Catherine Allen is a partner at Mason Hayes Curran. 2 Section 12 CLEA 2001 provides that seconded Gardaí (policemen) retain their usual powers and duties, in addition to any powers that they may exercise on behalf of the Director. The seconded Gardaí are part of the Garda Bureau of Fraud Investigation. 3 Section 20(1) Companies Act 1990 (‘CA 1990’), as substituted by section 30 of CLEA 2001.
  15. 15. Ireland 167 b compel persons found on the premises to produce any material information in his or her custody or possession;4 c seize and retain anything of material importance found on the premises;5 and d appointaninspectortodeterminetheidentityofthosewhoarefinanciallyinterested in the company, or able to influence materially the policy of the company.6 From a prosecutorial viewpoint, the DCE has the ability to impose fines,7 prosecute offences summarily8 and refer cases to the DPP for prosecution on indictment.9 Furthermore, the DCE may apply to have a person restricted10 or disqualified11 from acting as a director. In addition to the above bodies, the Registrar of Companies (although he arguably doesnothaveaninvestigativefunction)hasaprosecutorialfunctionregardingacompany’s filing obligations. Where a company fails to file on time, the Registrar is empowered to impose on-the-spot fines on the company or prosecute the company summarily.12 The Competition Authority also has extensive powers of investigation to assist it in enforcing the Competition Acts 2002–2012. It can carry out investigations into breaches of the Acts on its own initiative or in response to a complaint made to it. Section 45 of the Competition Act 2002 permits the Authority to carry out dawn raids on any premises where it has reasonable grounds to believe that records relating to the carrying on of a competition law offence are being kept. This power extends not only to the business premises itself, but also to the homes of the company’s executives. The Authority can also summon witnesses to attend before it for examination on oath and to require such witnesses to produce documents in his or her power or control. Failure to respond to a summons is considered contempt of court and is an offence in itself. The Investigations and Prosecutions Division of the Revenue Commissioners is responsible for investigating suspected revenue offences and reporting such offences to the DPP. All of the above are independent bodies, so their investigative and prosecutorial functions are not subject to direct political influence; however, each body usually has generalised and specific annual priorities that influence the decisions it makes about the matters it will investigate and the enforcement actions it will take. It may also be open to the relevant government minister, depending upon the legislation setting up the body in question, to give general policy directions to the body concerned. 4 Section 20(2) CA 1990, as substituted by section 30 CLEA 2001. 5 Section 20(2)(d) CA 1990, as substituted by section 30 CLEA 2001. 6 Section 14(1) CA 1990, as amended by section 14 and Schedule of CLEA 2001. 7 Section 109(1) CLEA 2001. 8 Section 12(1)(a) CLEA 2001, as amended by the Companies (Auditing and Accounting) Act 2003 (‘C(AA)A 2003’). 9 Section 12(1)(d) CLEA 2001, as amended by C(AA)A 2003. 10 Section 150 CA 1990, as amended by CLEA 2001. 11 Section 160 CA 1990, as amended by CLEA 2001. 12 CA 1963–2012.
  16. 16. Ireland 168 There is no obligation on a business to cooperate with the authorities. In many cases, companies will take legal advice to determine whether they should cooperate with, or challenge, the investigation or enforcement proceedings, as much depends upon the individual circumstances of the case. ii CONDUCT i Self-reporting Acompany’sdutiestoreportknowledgeorsuspicionofthecommissionofcriminaloffences will depend upon the regulatory regimes to which it is subject, and the circumstances and the stage at which a company is obliged to report suspected wrongdoing varies, as do the investigative powers of individual regulators. The company should take advice on the scope of its obligations and whether, on the facts, a duty to report has arisen. Some examples of where a duty to report arises include the following: a Section 9 of the Offences against the State (Amendment) Act 1998 places a duty on all citizens to report knowledge or suspicions of serious crimes. It makes it an offence to withhold information from An Garda Síochána that a person believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence. A ‘serious offence’ is one which may be punished by a term of imprisonment of not less than five years, and which involves loss of human life, serious personal injury, false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury, imprisonment or damage. b Section 57 of the Criminal Justice Act 1994 places an obligation on certain ‘designated bodies’, including their directors, employees and officers, to report to An Garda Síochána if they suspect that an offence under section 31 of the Act in relation to the business of that body has or is being committed. Section 31 deals with the offence of money laundering. c Section 19 of the Criminal Justice Act 2011 (‘CJA 2011’) makes it an offence for a ‘person’ to withhold information from An Garda Síochána, without reasonable excuse, if he or she knows or believes the information might be of material assistance in preventing the commission by another person of a relevant offence or securing the apprehension, prosecution or conviction of any person for a relevant offence. What constitutes a ‘relevant offence’ is quite broad and there are over 130 separate offences scheduled to the Act, including offences relating to company law, fraud, theft, corruption and financial activities. d Section 59 of the Criminal Justice (Theft and Fraud Offences) Act 2001 places a duty on a relevant person, that is to say, an auditor, to report suspected offences to An Garda Síochána, where the accounts of a firm, or other information, indicate that an offence under the Act may have been committed. This duty arises notwithstanding any professional obligations of privilege or confidentiality. In general, there are increasing obligations placed on certain categories of persons, such as auditors, receivers and liquidators, to report suspected offences. Further, the number
  17. 17. Ireland 169 of ‘designated persons’ required to report suspicious transactions for the purposes of anti- money laundering legislation has increased with the enactment of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. Special arrangements are in force concerning applications for immunity on behalf of offenders who have reported the activities of unlawful cartels in which they have participated. The DPP has agreed with the Competition Authority how to consider such applications and the published Cartel Immunity Programme (‘CIP’) sets out the policy of both the Director and the Authority and outlines the process through which parties must agree to cooperate to qualify for immunity. The decision on whether to prosecute remains with the DPP and the CIP makes it very clear that nothing in the CIP affects the DPP’s discretion to prosecute. As in other leniency programmes, total immunity is only available to the first company to come forward provided that it was not the ringleader of the cartel and the Authority does not yet have enough evidence to justify referring a completed investigation file into the particular cartel to the DPP. Furthermore, as is the position in the United States, cooperating employees, officers and directors of the confessing company are also immune from criminal penalties. In contrast with the United States, however, this protection also extends to former directors, officers and employees. As of 31 December 2011, four out of the seven cartel investigations on the Authority’s books were initiated as a result of immunity applications. Given the threat of incarceration and the severe financial penalties that can be imposed on cartel members this number is quite low. This has not gone unnoticed and in 2010 the Competition Authority reviewed the Leniency Programme to ensure that it continues to reflect best international practice and to align further the Irish position with the European Competition Network (‘ECN’) Model Leniency Programme. The revised programme was due to be published in the first quarter of 2012, but this has not yet occurred. It is now thought that the revised programme will be published in 2013 and at present it is understood that the Authority is still in active dialogue with the office of the DPP to progress the matter. Further, regardless of the nature of the offence, the decision to prosecute an indictable criminal offence is at the discretion of the DPP at all times. ii Internal investigations Businesses are free to conduct their own internal investigations into any behaviour that is of concern, and on the discovery or suspicion of a fraud a company will usually undertake an internal investigation. There are three main categories of evidence available in such an investigation, namely documents, electronic evidence and the evidence of witnesses. Employees are entitled to retain their own lawyers if they wish to do so. In the early stages of an internal investigation, legal representation for witnesses may not be required. However, if it appears that an external investigation of some kind may be required against the company or individuals associated with the company (particularly if it appears that the interests of a witness may conflict with the company’s interests), the witness should be advised to seek separate representation as soon as the need is identified. Further, there is also the possibility that interviews with witnesses ought to take place once the witness has been made aware of his or her rights, particularly if a criminal
  18. 18. Ireland 170 prosecution may follow. Specific legal advice should, therefore, be taken when designing a process around conducting an investigation. There is no requirement to share the results of an internal investigation with any investigativeorregulatoryauthority,noreventhefactthataninvestigationhastakenplace, except where reportable information is uncovered (see Section II.i, supra). However, if the view is taken that a criminal prosecution might arise from the investigation, the issue of how and when the investigative and regulatory authorities should be involved should be considered by the business at the planning stage of its investigation. Investigative and regulatory authorities may be prepared to work closely with organisations that are undertaking investigations to ensure that the investigation is carried out as effectively and efficiently as possible. Legal professional privilege can be asserted over the conduct of an investigation in accordance with the usual principles of privilege. If a lawyer is at the heart of the investigation, documents created may enjoy legal privilege and will not have to be disclosed to a regulator or an opposing party in any subsequent legal proceedings. However, where the company is required to provide documents to regulators, it may be necessary in some circumstances to waive privilege to persuade the regulator that the company is being fully cooperative. Further, amendments made to section 23 of the CA 1990 by C(A)A 2009 permit the seizure of information (even if privileged) on a sealed basis and provide that either the DCE or any person affected may apply to the High Court for a determination on the question of privilege. Privilege may be lost if used as a cloak to conceal and further crime, fraud or conduct injurious to the administration of justice. However, the person alleging fraud must show to the satisfaction of the court good grounds for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud. iii Whistle-blowers Current Irish legislation in relation to whistle-blowing is sectoral in nature; there is no standardised statute governing the area. A selection of Irish whistle-blowing legislation is set out below. Where an employee discloses, or proposes to disclose, a relevant offence under section 19 of the CJA 2011, section 20 provides that an employer shall not penalise or threaten to penalise that employee. The definition of ‘relevant offence’ is quite broad and includes, inter alia, the giving of financial assistance by a company for the purchase of its shares,13 frauds by officers of companies which have gone into liquidation,14 the provision of false statements to the auditors of a company15 and fraudulent trading.16 Where an employee is so penalised or threatened, the Act provides that the employee may bring a complaint to a rights commissioner, or alternatively, the employee may 13 Section 60 Companies Act 1963. 14 Section 295 Companies Act 1963. 15 Section 197 Companies Act 1990. 16 Section 297 Companies Act 1963.
  19. 19. Ireland 171 institute proceedings against the employer under the Unfair Dismissals Acts 1977–2007, or to recover damages at common law for unfair dismissals if the penalisation in question was a dismissal from employment. Section 50 of the Competition Act 2002 offers protection to those reporting breaches of the Act to the Competition Authority. The ‘whistle-blower’ must act in good faith and employers must not penalise the employee for reporting the alleged breach. If employees are penalised, a redress procedure is provided for in the Third Schedule to the Act. Section 4 of the Prevention of Corruption (Amendment) Act 2010 (‘POC(A)A 2010’) inserted section 8A into the Prevention of Corruption (Amendment) Act 2001 (‘POC(A)A 2001’). Section 8A provides protection for persons reporting offences under the Prevention of Corruption Acts 1889–2010 (‘POCA 1889–2010’). If, however, a person makes a false statement he or she is guilty of an offence. With a view to consolidating and standardising whistle-blowing legislation in Ireland, the Government published the General Scheme of the Protected Disclosure in the Public Interest Bill 2012 in February 2012. The main objective of the Bill is to ensure that workers in all sectors are protected against reprimand in circumstances where they disclose information relating to wrongdoing which they encounter in their place of work. The draft Bill also provides a redress scheme for employees who are penalised as a result of their disclosure. Shortly after the publication of the Protected Disclosure Bill, the Government also released the Draft Scheme of the Criminal Justice (Corruption) Bill 2012, which contains, in Head 22, its own provisions in relation to whistle-blowers who make ‘good faith’ disclosures under the Act. The Draft Scheme notes, however, that this provision may be subsumed into the Protected Disclosures Bill 2012 if that Bill is enacted before the Corruption Bill. At the time of writing, neither of these draft Bills has become law. iii ENFORCEMENT i Corporate liability It is well established that a company itself can be found liable for both the criminal and civil acts perpetrated by its officers and employees through the doctrine of vicarious liability: however, the issue of how to attribute criminal liability to a company can be problematic. There is a lack of Irish precedent where companies have been prosecuted for criminal offences requiring direct or personal liability through proof of the company’s mens rea. The general principle is that there must be some identifiable human person whose acts can be attributed to the company. This is known as the identification doctrine. On the other hand, regulatory offences do not always require proof that the corporate offender had mens rea, and for this reason successful prosecutions have been brought under various regulatory statutes, where absolute, strict or vicarious liability, as the case may be, avoids the issue of proving the corporation’s guilty mind. For example, Section 8(7) of the Competition Act 2002 makes an undertaking vicariously liable for offences under the Act where those offences are carried out by an officer of the undertaking for the purposes of, or in connection with, the business of the undertaking. This is a presumption and as such it can be rebutted.
  20. 20. Ireland 172 By way of contrast, under the POC(A)A 2001, if a corporate entity commits bribery, that entity itself can only be prosecuted for an offence if the most senior management authorised, or were at least aware of, the material details of the offence. This is based on the identification doctrine as outlined above. This poses a particular problem in multinational organisations, as it can be difficult to identify a particular ‘directing mind’ behind an instance of bribery where such large entities are concerned. The question of whether the criminal act of an employee or agent of a company could give rise, on the part of the company, to a vicarious liability towards a person injured in consequence will hinge always on the particular facts and circumstances of the criminal act in question. ii Penalties As there are a wide of criminal offences which can arise in this context, a comprehensive examination of every potential penalty is beyond the scope of this text. However, in general, civil or administrative sanctions apply for various offences perpetrated by corporate entities. For example, regulated financial service providers and persons involved in the management of regulated financial service providers can be investigated and sanctioned by the Central Bank. Where a person is convicted of any indictable offence in relation to a company, or involving fraud or dishonesty, then for five years from the date of conviction (or such other period as the court directs) he or she cannot be (section 160(1) CA 1990) appointed or act as an auditor, director or other officer, receiver, liquidator or examiner, or in any way concerned or take part in the promotion, formation or management of any company (directly or indirectly). Offences under the CJA 2001 attract unlimited fines and sentences of up to ten years’ imprisonment. OffencesundertheCA1963-2012canattractfinesorsentencesofvaryinglengths, depending on the particular offence. Normally, sentences are limited to a maximum of five to seven years’ imprisonment for convictions on indictment. Companies that are found guilty of an offence under Section 4(1) of the Competition Acts 2002–2012 face a Class A fine of €5,000 upon summary conviction and the officers of the company can be imprisoned for up to 6 months.17 The liability for a Section 4(1) offence upon conviction on indictment is a fine of up to €5 million or up to 10 per cent of the company’s worldwide turnover, whichever is the greater, and the officers of the company can also receive prison sentences of up to 10 years.18 Where a company is late filing its annual return in line with its obligations under the CA 1963–2012, the Registrar of Companies can impose a late filing penalty. A penalty of €100 becomes due the day after the expiry of the deadline and once the return is 30 days late, a daily penalty of €3 is imposed up to a maximum of €1,200. If a company fails to file its return at all, both the company itself or the directors of the 17 Section 8 Competition Act 2002 provides for the personal liability of officers of a company, if that officer authorised, or consented to, the conduct in breach of the Act. 18 These are the penalties introduced by the Competition Act 2012.
  21. 21. Ireland 173 company responsible for the failure to file can be prosecuted summarily and receive fines up to a maximum of €1,904.61. A company can also be struck off the register for failing to file its annual return. iii Compliance programmes The ‘all reasonable steps’ defence appears in many regulatory statutes, for example in Section 158(7) of the CA 1963. In other words, an officer is presumed to have permitted a default by a company unless the officer can establish that he took all reasonable steps to prevent it or that, by reason of circumstances beyond his control, he was unable to do so. Therefore, a compliance programme that assists officers in preventing default by company will be helpful in demonstrating that such reasonable steps were taken. Head 13 of the draft scheme of the Criminal Justice (Corruption) Bill 2012 provides a defence for a corporate entity if it can show that it took ‘all reasonable steps’ and exercised ‘all due diligence’ to avoid the commission of an offence of bribery by its employees, subsidiaries, agents, officers, managers, directors and secretaries. A well- drafted and regularly updated policy will, therefore, be necessary to insulate a company from bribery allegations and mitigate the potential consequences of a conviction for such offences. Even if the Bill is not made law in Ireland, given the substantial extraterritorial effects of the UK’s Bribery Act 2010, Irish businesses must nevertheless ensure that effective corporate compliance programmes are in place and revised consistently. iv Prosecution of individuals Employees may be held liable for criminal offences arising out of their employment with a company. As stated above, in the context of investigations, wherever allegations or suspicions exist that employees have been involved in the commission of offences, early consideration has to be given to advising them to seek separate representation due to the risk of a conflict of interests. Consideration should also be given to cautioning the employees as to their rights before any interview, and legal advice should be taken in this regard. Senior employees may be covered by directors’ and officers’ insurance. Section 200 (b) of the CA 1963 provides that a company may indemnify any officer or auditor against any liability incurred by him in defending proceedings, whether civil or criminal, in which any judgment is given in his favour or in which he is acquitted. It is also common to suspend the individuals or put them on garden leave pending the outcome of the investigation. Employees would not normally be dismissed until the end of formal disciplinary proceedings. iv INTERNATIONAL i Extraterritorial jurisdiction Section 6 of the POC (A)A 2001 provides that a person can be tried for corruption even if only part of the offence occurred in Ireland. Section 7 extends Irish jurisdiction to Irish office holders or officials, and makes it an offence for them to commit corrupt acts outside Ireland.
  22. 22. Ireland 174 Section 3(2) of the POC(A)A 2010 extended the jurisdictional scope of the existing anti-corruption legislation to Irish citizens, Irish residents and Irish registered companies, as well as corrupt officials. ii International cooperation Pursuant to the provisions of the Criminal Justice (Mutual Assistance) Act 2008, Ireland can provide mutual assistance to designated states, including members of the EU, Iceland, Norway and the United States. The 2008 Act gives a statutory footing to Ireland’s commitments under a variety of Conventions, Protocols and Framework Decisions. Provisions in relation to extradition are contained in: a Part II of the Extradition Act 1965; b the Extradition (European Convention on the Suppression of Terrorism) Act 1987; c the Extradition (Amendment) Act 1994; and d the Extradition (European Union Conventions) Act 2001. These Acts make provision for obligations under the European Convention of Extradition 1957. Ireland also has bilateral extradition treaties with other countries. Countries outside the European Union may make a request for extradition to seek the return of a person who is wanted in one of those countries in relation to a crime and who is now living in Ireland. The request may seek the return of the person to: a stand trial; b face sentencing after conviction; and c serve a sentence already handed down by a court in that country. iii Local law considerations There are local law considerations that come into play in internal, regulatory and criminal investigations in Ireland. These include data protection, banking confidentiality and legal professional privilege (for the latter, see Section II.ii, supra). In relation to banking confidentiality, every bank owes an obligation of confidentiality to its customers; it is a legal duty which arises from contract. A banker’s obligation is not absolute and may be derogated from in certain circumstances. There are many examples of statutory derogations, such as in anti-money laundering legislation (see Section II.i, supra). Further, Section 8 of the Data Protection Act 1988, as amended, provides that any restrictions contained in the Act on the processing of personal data do not apply if the processing is required for the purpose of detecting or investigating offences, apprehending or prosecuting offenders or assessing or collecting any tax, duty or other moneys owed or payable to the State, in any case in which the application of those restrictions would be likely to prejudice any of those matters. Finally, the Irish Constitution protects the right to a fair trial, and Ireland has incorporated the European Convention on Human Rights into Irish law. Both of these may impact upon the extent to which Irish authorities may comply with investigations conducted by foreign regulatory authorities.
  23. 23. Ireland 175 v YEAR IN REVIEW There have been relatively few criminal investigations for corporate fraud and fewer prosecutions in Ireland to date. This is expected to change over the coming years. Criminal prosecutions of three former directors of Anglo Irish Bank (now in liquidation) continue to attract considerable media attention. The first trial is unlikely to take place until next year. Cases of interest include Comcast International Holdings Inc v. Minister for Public Enterprise.19 In this case, the Supreme Court allowed appeals from the High Court and set aside an order dismissing claims arising from the grant of a mobile phone licence in 1995. The facts in the proceedings turned on the matters investigated by the Tribunal of Inquiry into Payments to Politicians and Related Matters, known as the Moriarty Tribunal. In one of its reports, the Tribunal strongly condemned the conduct of the responsible minister in interfering with the process of reaching a decision, as well as the decision itself, on the award of mobile telephone licences in 1995. The appellants had brought proceedings seeking damages or remedies in relation to the tender process, which were brought before the High Court. In response to applications brought by the State, the High Court dismissed the claims for inordinate and inexcusable delay in pursuing the claims. The appellants sought in these proceedings to appeal that decision to the Supreme Court. The Chief Justice, in allowing the appeal, considered the grave nature of the corruption alleged by the applicants to be clearly relevant. She noted that this corruption was the subject matter of the Tribunal and that the appellants had decided to delay in the matter because of the activity of the Tribunal. Looking at the evidence, it appeared that there was at least a de facto consent or acquiescence by the State to the delay in the matter and Denham CJ therefore considered the interests of justice permitted the delay in this matter to be considered excusable. A decision in the substantive proceedings will therefore be of interest in the coming year. vi CONCLUSIONS AND OUTLOOK Inevitably, the law in this area is undergoing constant change. It is proposed that the CA 1963–2012 be remodelled into a single Act known as the Companies Consolidation and Reform Act. This will have wide-ranging consequences for company law generally. Further, as stated earlier, two important pieces of potential legislation are currently making their way through the Irish legislative process and their progress should be watched carefully over the coming months. The first piece of pending legislation is the Criminal Justice (Corruption) Bill 2012. The draft scheme of the Bill provides for a consolidated corruption statute to replace and reform the provisions of the POCA 1889–2010. The most noteworthy aspect of the draft scheme is the new offence provided for in Head 13. Clearly inspired by the UK’s Bribery Act 2010, the new offence allows for companies to be held criminally 19 [2012] IESC 50 (Supreme Court, Clarke J, Denham CJ, Fennelly J, Hardiman J, McKechnie J, 17 October 2012).
  24. 24. Ireland 176 liable if an officer or employee of the corporation commits a corruption offence with the intention of obtaining a business advantage for that company. A corporate entity accused of such an offence will, however, have a complete defence if it can prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. Should this offence come into force, the Irish business landscape will be irrevocably altered and it will be more important than ever for corporate entities to have robust anti- corruption procedures in place. The second noteworthy piece of prospective legislation is the Protected Disclosures and Public Interest Bill 2012, discussed above (see Section II.iii, supra). The Competition Authority and the DPP are expected to publish their Revised Cartel Immunity Programme in 2013.
  25. 25. 315 Appendix 1 about the authors Catherine Allen Mason Hayes Curran Catherine is a partner in the public and administrative law unit of Mason Hayes  Curran, with a broad range of experience, from advisory to dispute resolution, in public and regulatory law issues and in interacting with regulatory and government authorities. Catherine has particular experience and interest in the health insurance, healthcare, energy and broadcasting sectors. Providing guidance on the complexities and regulatory requirements of numerous regulatory and disciplinary bodies, Catherine has advised both individuals and entities interacting with these bodies and the bodies themselves – among them the Commission for Energy Regulation, the Health Insurance Authority, the Solicitors Disciplinary Tribunal, the Advertising Standards Authority of Ireland, the Broadcasting Authority of Ireland and the Environmental Protection Agency. Catherine advises on the conduct of investigations and inquiries by regulatory bodies, particularly in relation to fair procedures and processes generally, and advises witnesses appearing before such investigations and inquiries. Catherine also has a strong litigation practice relating to regulatory issues, including judicial review, procurement litigation and alternative dispute resolution.
  26. 26. About the Authors 316 Mason Hayes Curran South Bank House Barrow Street Dublin 4 Ireland Tel: +353 1 614 5000 Fax: +353 1 614 5001