IE-2021-act-2 — Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021

Definition 1. In this Act “Principal Act” means the Criminal Justice (Theft and Fraud Offences) Act 2001 . Interpretation (Part 6) 2. The Principal Act is amended by the substitution of the following section for section 40: “40. (1) In this Part— ‘Act of 2018’ means the Criminal Justice (Corruption Offences) Act 2018 ; ‘corruption offence’ means an offence under section 5 of the Act of 2018; ‘Directive’ means Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, the text of which is, for convenience of reference, set out in Schedule 1A; ‘fraud affecting the financial interests of the European Union’ has the same meaning as ‘fraud affecting the Union’s financial interests’ in Article 3(2) of the Directive; ‘misappropriation’ has the same meaning as it has in Article 4(3) of the Directive; ‘money laundering offence’ means an offence under Part 2 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 ; ‘national official’, for the purposes of the application of Article 4(4)(a) of the Directive, means an Irish official within the meaning of section 2(1) of the Act of 2018; ‘public official’ means— (a) a Union official within the meaning of Article 4(4)(a)(i) of the Directive, (b) a national official, (c) a foreign official within the meaning of section 2(1) of the Act of 2018, or (d) a person referred to in Article 4(4)(b) of the Directive. (2) A word or expression that is used in this Part and that is also used in the Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Directive.”. Fraud affecting financial interests of European Union 3. The Principal Act is amended by the substitution of the following section for section 42: “42. (1) Subject to subsection (2), a person who intentionally commits any fraud affecting the financial interests of the European Union is guilty of an offence and is liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both. (2) Where an offence under subsection (1) relates to acts or omissions to which Article 3(2)(d) of the Directive applies, the offence is not committed unless such acts or omissions are connected with the territory of two or more Member States and involve a total damage of not less than €10,000,000.”. Misappropriation 4. The Principal Act is amended by the insertion of the following section after section 42: “42A. A public official who intentionally commits misappropriation is guilty of an offence and is liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.”. Liability for offences by body corporate, etc. (Part 6) 5. The Principal Act is amended by the insertion of the following section after section 42A (inserted by section 4 ): “42B. (1) Where a relevant offence is committed for the benefit of a body corporate by a relevant person and the commission of the relevant offence is attributable to the failure, by a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, to exercise, at the time of the commission of the relevant offence and in all the circumstances of the case, the requisite degree of supervision or control of the relevant person, the body corporate shall be guilty of an offence. (2) In proceedings for an offence under subsection (1), it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence. (3) Where an offence under section 42 or 42A, or an offence of inciting, aiding and abetting, or attempting the commission of such an offence, is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence. (4) Where the affairs of a body corporate are managed by its members, subsection (3) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate. (5) Subsection (1)— (a) is without prejudice to the other circumstances, under the general law, whereby acts or omissions of a natural person are attributed to a body corporate resulting in criminal liability of that body corporate for those acts or omissions, and (b) does not exclude criminal proceedings against natural persons who are involved as perpetrators, inciters or accessories in an offence referred to in that subsection. (6) A person guilty of an offence under subsection (1) is liable on conviction on indictment to a fine. (7) In this section— ‘relevant person’, in relation to a body corporate, means— (a) a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, or (b) an employee, subsidiary or agent of the body corporate; ‘relevant offence’ means— (a) an offence under section 42 or 42A, (b) a money laundering offence involving property derived from the proceeds of an offence referred to in paragraph (a), (c) or (d), (c) a corruption offence that damages, or is likely to damage, the financial interests of the European Union, or (d) an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (a), (b) or (c); ‘subsidiary’, in relation to a body corporate, has the same meaning as it has in the Companies Act 2014 .”. Amendment of section 45 of Principal Act 6. Section 45 of the Principal Act is amended— (a) by the substitution of the following subsection for subsection (1): “(1) An Irish citizen who engages in conduct in a place outside the State that, if engaged in in the State, would constitute an offence under section 42, 42A or 42B, or would constitute an offence of inciting, aiding and abetting, or attempting the commission of such an offence, shall be guilty of an offence.”, (b) by the insertion of the following subsection: “(1A) A— (a) company formed and registered under the Companies Act 2014 , an existing company within the meaning of that Act, or any other body corporate established under the law of the State, or (b) person who has had his or her principal residence in the State for the period of 12 months immediately preceding the doing of the act concerned, who engages in conduct in a place outside the State that, if done in the State, would constitute— (i) an offence under section 42, 42A or 42B, or (ii) an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (i), shall be guilty of an offence.”, and (c) by the substitution of the following subsection for subsection (3): “(3) A person guilty of an offence under this section is liable on conviction to the penalty to which the person would have been liable had the person engaged in the conduct that constitutes the offence in the State.”. Amendment of section 58 of Principal Act 7. Section 58(1) of the Principal Act is amended, in paragraph (a), by the substitution of “this Act (other than Part 6)” for “this Act”. Amendment of Principal Act - Schedule 8. The Principal Act is amended by the insertion of the text set out in the Schedule as Schedule 1A to that Act. Amendment of Criminal Justice Act 1994 9. The Criminal Justice Act 1994 is amended, in paragraph 10 of Part 2 of Schedule 1A, by— (a) the substitution of “section 38(1);” for “section 38(1).” in subparagraph (p), and (b) the insertion of the following subparagraphs after subparagraph (p): “(q) section 42(1); (r) section 42A.”. Amendment of Criminal Justice Act 2011 10. The Criminal Justice Act 2011 is amended, in paragraph 23 of Schedule 1, by the insertion of “42A,” after “42,”. Amendment of European Union (Passenger Name Record Data) Regulations 2018 11. The European Union (Passenger Name Record Data) Regulations 2018 ( S.I. No. 177 of 2018 ) are amended, in paragraph 7 of Schedule 2, by the insertion of “42A,” after “42,” in the list of sections of the Principal Act. Repeals 12. The following provisions of the Principal Act are repealed: (a) section 41; (b) section 46(4); (c) section 47; (d) Schedules 2 to 9. Short title, collective citation and commencement 13. (1) This Act may be cited as the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021. (2) The Criminal Justice (Theft and Fraud Offences) Act 2001 and this Act may be cited together as the Criminal Justice (Theft and Fraud Offences) Acts 2001 and 2021. (3) This Act shall come into operation on such day or days as the Minister for Justice may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.