Whistleblowing

Once the reporting process at the internal reporting office is completed, the internal reporting office can take various follow-up actions. In addition to internal investigations, the process can also be handed over to a competent authority for further investigation (section 18 No. 4 HinSchG).

Section 19 of the Criminal Justice Act 2011 establishes that a person/corporate entity will be guilty of an offence:

• if they have information; and
• they know or believe that information will or might be of material assistance in preventing the commission of a relevant offence or securing the apprehension, prosecution or conviction of any other person for a relevant offence; and
• they fail without a reasonable excuse to disclose that information as soon as it is practicable to do so to An Garda Síochána (the Irish police force).

The “relevant offences” are set out in the schedule to the 2011 Act and are wide-ranging. These are arrestable offences and include: breaches of company law, competition law, banking, investment funds and other financial activities, theft and fraud, bribery and corruption, criminal damage to property and consumer protection. The range of offences covered can be amended by ministerial order.

The obligation to make a notification under section 19 applies to any person, including corporate entities as well as natural persons. If an offence is committed by a corporate entity and it can be proven that this was done with the consent or connivance of any officer (such a director) or was as a result of the officers wilful neglect, that person will also be guilty of an offence and will be prosecuted and penalised as if they had committed the offence themselves.

The maximum penalty for failing to report an offence is an unlimited fine and imprisonment for up to 5 years, or both.

A person is under a mandatory statutory obligation to make a report under the 2011 Act as soon as it is practicable to do so.

Persons/corporate entities will be guilty of an offence under the 2011 Act if they fail to report a relevant offence without ‘reasonable excuse’.

A reasonable excuse is also not defined under the 2011 Act, and would likely be dependent on the circumstances of the case. For example, when a person may themselves be involved or implicated in the offence and reporting might compel them to incriminate themselves, this would be a reasonable excuse. The Courts have held that a reasonable excuse may exist when there is some “physical or practical” difficulty in reporting the crime or if the information has already been disclosed.