Parliamentary Privileges Report


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Clarification of the law relating to the Bribery of Members of Parliament

A DISCUSSION PAPER

December 1996

CLARIFICATION OF THE LAW RELATING TO THE BRIBERY OF MEMBERS OF PARLIAMENT

INTRODUCTION

  The Nolan Committee on Standards in Public Life, in its first report, recommended that: "the Government should now take steps to clarify the law relating to the bribery of, or receipt of a bribe by, a Member of Parliament". The Committee also suggested that the clarification of the law might usefully be combined with consolidation of the statute law on bribery recommended by the Salmon committee in 1976 and that this task might be undertaken by the Law Commission.

  2.  The First Report from the Select Committee on Standards in Public Life agreed with the Nolan Committee and recommended:

    "that the Government should ask the Law Commission to undertake an immediate review of the common and statute law relating to bribery, with specific reference to Members of Parliament. The review should concentrate in particular on the degree of doubt which exists about the effectiveness of the common law in dealing with bribery cases involving Members and the practical problems, if any, which arise from this."

  3.  The Government agreed that the law should be clarified. However, in the first instance it felt that this was a matter of policy for the Government and Parliament rather than a question of law for the Law Commission, though the Government has not ruled out involving the Commission at a later stage if it seemed that their assistance would be helpful, particularly in the light of their current review of dishonesty offences, which will be considering proposals to reform the law on bribery and corruption. The purpose of this paper is to set out possible options for the clarification of the law for consideration by the Select Committee on Standards and Privileges.

  4.  With regard to the consolidation of the statute law on bribery (found mostly in the Prevention of Corruption Acts 1889-1916) the Government is considering the scope for new legislation in this area in the light of likely international obligations arising from current work in the Council of Europe and the Organisations for Economic Co-operation and Development, and expects to make a further statement soon.

PRESENT SITUATION

  5.  In 1976, the Royal Commission on Standards of Conduct in Public Life, under the chairmanship of Lord Salmon, reported that neither the statute nor common law relating to bribery applied to a Member of Parliament. With regard to the statute law, (Prevention of Corruption Acts 1889-1916), neither House of Parliament is a public body for the purposes of the Public Bodies Corrupt Practices Act, 1889, neither can a Member of Parliament be regarded as an agent for the purposes of the Prevention of Corruption Act 1906. According to Salmon, membership of Parliament does not, as such, constitute a public office for the purposes of the common law offence of Misuse of Public Office. Acts of bribery by, or of, a Member of Parliament, were however covered by the rules of the relevant House and could be dealt with as a breach of privilege.

  6.  The Salmon Commission recommended that Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament, acting in his Parliamentary capacity, within the ambit of the criminal law. The then Government did not respond to this recommendation, as it considered it to be a matter for Parliament itself. The issue does not seem to have been followed up by Parliament in the intervening years.

  7.  However, Lord Nolan's committee considered that the position of Members of Parliament at law was not as clear cut as established by Lord Salmon. The Committee referred to the case where a Member of the House of Commons had been charged with the common law offence in England and Wales of Misuse of Public Office, though the Member was acquitted. The judge in this case held that the alleged conduct of the Member of Parliament would fall within the scope of the common law offence, though the issue has not been tested before the Court of Appeal. Such acts would also be a breach of Parliamentary Privilege. In the light of this the Nolan Committee recommended that the law should be clarified. It is thought that there is no equivalent common law offence in Scotland applicable to Members of Parliament.

  8.  The Government has accepted that there is ambiguity in the present situation and that Members of Parliament—and indeed the public—are entitled to a greater degree of certainty as to the application of the criminal law, and of Parliamentary Privilege, in circumstances where corrupt acts are alleged to have been committed by a Member of Parliament. At present it seems likely that such acts—at least of Members of the House of Commons—constitute in England and Wales the common law offence of Misuse of Public Office, but, as discussed below at paragraph 11, some evidence which might be necessary to establish the guilt or innocence of a Member may not be available to the courts by virtue of article 9 of the Bill of Rights, 1688. The Government has therefore welcomed this opportunity to clarify the law relating to the bribery of MPs. In this context, "Member of Parliament" refers to Members of both Houses of Parliament.

OPTIONS FOR CLARIFICATION

  9.  There appear to be four broad options for taking forward the law in this area:

    i.  to rely solely on Parliamentary Privilege to deal with accusations of the bribery of Members of Parliament;

    ii.  subject Members of Parliament to the present corruption statutes in full;

    iii.  distinguish between conduct which should be dealt with by the criminal law and that which should be left to Parliament itself;

    iv.  make criminal proceedings subject to the approval of the relevant House of Parliament.

i.   Rely on Parliamentary Privilege

  10.  It is for each House of Parliament itself to define and enforce its privileges. The House of Commons has, for example, by successive resolutions, declared certain actions to be in breach of privilege. Offering bribes to Members to influence them in their conduct as a Member, or of any fee or reward in connection with the promotion of, or opposition to, any Bill, resolution, matter or thing submitted, or intended to be submitted to the House, or any committee thereof is a breach of privilege. The acceptance by a Member of such a bribe in similar circumstances is also a breach of privilege. Resolutions also apply to conduct such as offering money to a Member to table a Question, entering into any contract with an outside body which might control or limit the independence or freedom of action of a Member, or failing to disclose relevant pecuniary interests or benefits in debates or proceedings of the House.

  11.  Article 9 of the Bill of Rights 1688 provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. A comparable provision of the (Scottish) Claim of Right 1689 is thought to secure the same effect in Scotland, although there is a lack of judicial authority. The Salmon Commission recognised that any proposal to modify this principle should be approached with the greatest caution. There is therefore a case for saying that any allegedly corrupt activity by a Member of Parliament in relation to their Parliamentary duties, is a matter for Parliament alone and that the courts and criminal law should not intervene. Of course, if an MP tried to bribe someone outside the House, or if someone tried to bribe an MP in his capacity, say, as a company director that would be a matter for the criminal law since Parliamentary Privilege would not be at issue.

  12.  Such an approach, however, has several drawbacks. First there is the question of sanctions. Recent instances show that misconduct by Members of the House of Commons is punished by suspension, by suspension with loss of salary, or in extreme cases by expulsion. Such penalties are in marked contrast to those available on conviction under the Prevention of Corruption Acts, which extend to Scotland, where a person may be sent to prison for a term of up to seven years or receive an unlimited fine. Secondly, the investigative machinery available to Parliament is not comparable to that of a police investigation and a police investigation would be inappropriate if the conduct under inquiry is not a criminal offence. Thirdly, if the conduct of a Member of Parliament is not covered by the criminal law, then the conduct of the person bribing the Member (or being bribed by them) would also be immune from criminal investigation and proceedings would not be possible against that person under the criminal law. Fourthly, Parliament would be without an effective sanction in those cases where the corrupt conduct only came to light after the individual had ceased to be a Member. There could be neither suspension nor expulsion.

ii  Subject MPs to the criminal law

  13.  The Prevention of Corruption Act 1906 makes it an offence for an agent corruptly to give, agree to give or offer a person any gift or consideration as an inducement or reward for doing or forbearing to do any act in relation to his principal's affairs or business. For the purposes of this Act an agent includes an employee and officers of public bodies are covered by similar provisions in the Public Bodies Corrupt Practices Act 1889.

  14.  Members of Parliament are not employees or agents and neither House is one of the public bodies to which the 1889 Act applies. However, in general, it would seem possible to extend the scope of the statutes to cover Members of both Houses so that the offer or receipt of a bribe to or by a Member of Parliament, if it was corrupt, would constitute a criminal offence.

  15.  The term "corruptly" is not defined in statute and it is left for the courts to decide how to interpret that term. In effect it does not mean that any unauthorised gift or consideration is unlawful; it is unlawful only where the circumstances demonstrate that the inducement was given and received corruptly to influence the Member to act otherwise than independently and in accordance with his own view of the matter. The 1906 Act, in relation to bribery of "agents", articulates the offence in terms of corruptly giving or receiving an inducement or reward for "doing or forbearing to do .  .  . any act in relation to his principal's affairs or business .  .  ."

  16.  Subjecting Members of Parliament to the criminal law, in a similar way to members of other public bodies, would mean that the courts could take jurisdiction over corrupt acts committed by MPs. However it is a matter of proper concern that it might lead to a significant modification of the provisions of the Bill of Rights and Claim of Right in that the courts would have the power to determine whether the actions of an MP in a specific circumstance relating to the Member's Parliamentary duties were corrupt. To allow the courts such power over the conduct of Parliament would give rise to significant questions of constitutional principle. But the contrary view is that disapplication of Article 9 of the Bill of Rights is unnecessary since the corruption is complete when the bribe is given and accepted for a corrupt purpose; what happens thereafter in Parliament is nothing to the point. However, it may be necessary to consider the conduct of the Member in question, in Parliament, as evidence to prove that the offence was committed.

  17.  Reports of Parliamentary conduct or speech cannot be used in evidence by the prosecution or defence to infer a motive for the Member's conduct. An analysis of the position of the courts in relation to the Bill of Rights and Parliamentary Privilege is set out in the Annex to this paper. The Defamation Act 1996 provides individual Members with the option of waiving the application of the respective Articles of the Bill of Rights and Claim of Right to themselves, at their own request, in defamation cases. A similar arrangement for criminal proceedings would almost certainly be unacceptable if the decision whether or not to waive the application of these Articles was left to the Member. It might be seen as a way of a Member preventing evidence of his or her guilt being put before the court, but allowing evidence in his or her favour to be considered. But it may be worthwhile considering further whether a general waiver for cases of bribery may be a compromise acceptable to Parliament and the public.

iii.   Distinguish between conduct which should be dealt with by the criminal law and that which should be left to Parliament itself

  18.  In view of the drawbacks identified with either leaving the question of bribery and MPs solely to Parliament, or involving the criminal law in the normal way, alternative positions need to be considered. One option might be to try to distinguish between the conduct which should be dealt with by the criminal law and that which should be left to Parliament itself.

  19.  Essentially this is a question of jurisdiction. It might be possible for each House to determine, through one or more resolutions, that conduct of a particular unacceptable sort was of a kind that should be dealt with as a breach of Privilege and was accordingly exempt from proceedings under the criminal law. If a case involving such conduct came before the courts, their role would be restricted to determining, on the facts of the case, whether the conduct complained of was covered by an appropriate resolution of the House.

  20.  If a solution along these lines were adopted, each House would have to consider whether its rules of conduct were sufficiently precise to allow the courts to determine where the boundary between the jurisdictions lay. The code of conduct recommended by the Nolan Committee, and the guidelines associated with it, ought to give the House of Commons some serviceable rules, though the position in the Lords may be less clear.

iv.   Make criminal proceedings subject to the approval—or annulment—of the relevant House of Parliament

  21.  A further option would be for the relevant House of Parliament to decide whether, in a particular case of alleged corruption, criminal charges should be brought (following amendment to the Prevention of Corruption Act 1906) or whether the issue should be dealt with by the House itself. There could be a presumption that no criminal charges could be brought against a Member of Parliament unless the relevant House consented to such action. The House in question would have to decide, in the circumstances of the case, whether the facts were such that it could investigate the situation adequately itself, and if the allegations were substantiated, whether any sanctions it could impose on the errant Member were adequate. If it decided that it could investigate and, if necessary, punish the Member in question, the House could choose to deal with the issue as a breach of privilege. Alternatively, it might decide that the facts of the case were so serious that they justified a police investigation and criminal prosecution.

  22.  Such a solution would preserve the rights of Parliament to determine whether it should adjudicate on allegations of curruption of its Members whilst allowing criminal sanctions to be applied where appropriate.

  23.  A difficulty with this option is that it might be seen by the public as importing a political element into prosecution decisions. It would be particularly difficult presentationally if a decision to allow, or not to allow, a criminal prosecution were seen to have been taken on party political lines. There could be a suspicion that members of the majority party were less likely to face prosecution than others. Moreover, it is difficult to see how Parliament could make a properly informed decision until after there had been an investigation. It would not know, for example, whether it was dealing with an isolated example of small scale corruption or part of a wider, more systematic scheme. Neither should the issue of approval or annulment be resolved until such time as the relevant prosecuting authority has considered the papers and is satisfied that, on ordinary criteria, proceedings would, in fact be justified. It is also difficult to see how the relevant House could take a decision without discussion and that, of itself, would involve exploration of the facts in question, which could well prejudice the subsequent criminal proceedings.

  24.  One possibility might be a presumption that criminal proceedings would be taken unless the relevant House took a decision, in a particular case, that they should not. The effect of this presumption would be to give the police and the courts general permission to investigate allegations of bribery of MPs but each House would have the right to withdraw that permission in a specific instance. This would presumably mean that a Member of Parliament who was facing allegations of corrupt activity would have to justify to the relevant House why criminal proceedings should not be taken in their particular situation and why the House in question would be better placed to deal with the matter. It is nevertheless doubtful whether this solution would be acceptable.

CONCLUSION

  25.  The Select Committee is invited to comment on the options set out above, as well as on any others the Committee feel are worthy of consideration.

Home Office

December 1996

Annex

ANALYSIS OF THE POSITION OF THE COURTS IN RELATION TO THE BILL OF RIGHTS AND PARLIAMENTARY PRIVILEGE

  Recent House of Lords and Privy Council authorities on proceedings in Parliament have exposed that, in each case courts will consider two major hurdles before being prepared to take account of matters relating to the proceedings of Parliament. These are the effect of article 9 of the Bill of Rights 1688 and Parliamentary Privilege.

  2.  In Pepper v Hart [1993] AC 593, the House of Lords decided for the first time that the courts were entitled to refer to Hansard reports of the Parliamentary passage of domestic primary legislation as an aid to its interpretation. The Attorney General raised objections both on the grounds that this would breach article 9 and that it infringed Parliamentary Privilege.

  3.  Article 9 provides:

    "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament"

  The House held that the use of clear Ministerial statements as an aid to the construction of ambiguous legislation did not amount to questioning or impeaching the proceedings in Parliament or otherwise contravene article 9 of the Bill of Rights.

  4.  There is also the question of Parliamentary Privilege, which in Pepper v Hart, the Attorney General is reported as describing as the Commons' "exclusive cognisance of its own proceedings". The House noted that the courts had always been wary in protecting Parliamentary Privilege. But it also seems to have regarded the notion of such a privilege going beyond the Bill of Rights as somewhat nebulous, and paid particular regard to the fact that the privilege had in fact been specified and claimed in those proceedings by neither the Clerk of the Commons nor the Attorney General. The House referred in some details to the 21st edition of Erskine May at pages 147 to 160.

  5.  The other recent case is Prebble v T V New Zealand [1994] 3 WLR 970, a decision of the Privy Council. The plaintiff, an ex-Minister in the New Zealand Government, sued for defamation and the defence relied in part on statements to the House of Representatives indicating that the plaintiff and other Ministers sought to mislead the House. Article 9 and Parliamentary Privilege were again in issue. Here, it was held to be an infringement of Parliamentary Privilege for any party to legal proceedings to question in those proceedings words spoken or actions taken in Parliament by suggesting that they were untrue, misleading or instigated for improper motives. This was so even in defence of proceedings instituted by a member of the legislature. Apart from any statutory exception only Parliament had jurisdiction over such matters.

  6.  On article 9 of the Bill of Rights, it was clear that the defendant intended to rely upon what had been said and done in the House of Representatives and to question such statements and acts. This would breach article 9; and accordingly the defendant's pleadings were struck out by the court in so far as they breached the article and offended against Parliamentary Privilege.

  7.  It may be concluded from this case that:

    i.  in any case where reliance is placed on statements or action in Parliamentary proceedings, the courts are likely to hold there is a breach of article 9—particularly where such statements or actions are a contested issue in legal proceedings.

    ii.  where such statements or actions are questioned in legal proceedings, there may also be a breach of Parliamentary Privilege, but this is either capable of waiver or required to be positively asserted;

    iii.  if Members of Parliament are to be prosecuted for accepting bribes to ask questions, or not to do so, or otherwise to affect their conduct in Parliament, there will be a breach of article 9 and of Parliamentary Privilege, the Member's parliamentary conduct itself will become a live issue in criminal proceedings;

    iv  whereas the privilege might be subject to a waiver, the breach of article 9 would not.

  8.  It is clear from Pepper v Hart that it is for the courts to determine the legal meaning and effect of article 9 (p624D). It is also clear that the courts can now use reports of Parliamentary proceedings.

    i.  as aids to the interpretation of ambiguous domestic legislation (Pepper v Hart);

    ii.  to ascertain the purpose of subordinate legislation (Pickstone v Freemans [1989] AC 66);

    iii.  for "reference purposes" (HC Resolution, 31 October 1980, see Pepper v Hart at 623 G);

    iv.  to prove that a Minister had acted correctly in judicial review proceedings (R v Home Secretary, ex parte Brind [1991] 1 AC 696);

    v.  to prove a fact in judicial review proceedings (a decision that this did breach article 9 in R v Trade Secretary ex parte Alderman Strathclyde [1983] 2ALL ER 233 was held to have been wrongly decided—Pepper v Hart at 639F).

  9.  On the other hand, the courts cannot use evidence of such reports to impugn Parliamentary conduct. To do so would undermine the basic concept of article 9—the need to ensure, so far as possible, that a member of the legislative can speak freely without fear that what he says will later be held against him in the courts. The member must not be inhibited from free speech. It would be wrong to suggest in court that the member was lying or misleading the House for this reason; in any event the House itself can deal with such issues. It matters not that the legal proceedings are initiated by the maker of the statement. All this is taken from the Prebble case, which followed the Court of Appeal decision (approved in Pepper v Hart) of Church of Scientology v Johnson-Smith [1972] 1QB 522, where evidence of what the defendant, an MP, had said in the House could not be used by the plaintiff as proof of malice in a libel action, because of article 9.

  10.  There is also an American case (US v Brewster, 1972) where the Supreme Court held that the US equivalent of Article 9 of the Bill of Rights did not prevent a Senator from being prosecuted for accepting a bribe for a legislative act. It is unclear whether there is a read across from that case to the position in the United Kingdom.

  11.  Another decision which may be relevant is that of the European Court of Human Rights in the case of Demicole v. Malta. The court held that the participation throughout the Parliamentary proceedings of two Members of the Maltese Parliament, in a breach of privilege case, was sufficient for the impartiality of the adjudicating body (the House of Representatives) to be open to doubt. The decision of the House was accordingly set aside by the Court.

  12.  Notwithstanding those cases, synthesising the above principles, an offence of bribery an MP may well be feasible if:

    i.  it were made subject to the consent, or conversely, objection, by the relevant House, and

    ii.  reports of Parliamentary conduct or speech could not be used in evidence by prosecution of defence: the offence would need to be made out without recourse to such material.

HOME OFFICE

THE PREVENTION OF CORRUPTION

CONSOLIDATION AND AMENDMENT OF THE PREVENTION OF CORRUPTION ACTS 1889-1916: A GOVERNMENT STATEMENT

June 1997

CHAPTER 1.  INTRODUCTION

  1.1  The Committee on Standards in Public Life, chaired by Lord Nolan, in its first report, recommended that: "the Government should now take steps to clarify the law relating to the bribery of, or receipt of a bribe by, a Member of Parliament." The committee also suggested that the clarification of the law might usefully be combined with the consolidation of the statute law on bribery, recommended by the Salmon Commission in 1976 and that the Law Commission might usefully be involved in this work.

  1.2  The then Government accepted the Nolan Committee's recommendation and suggestion. The question of the law relating to the bribery of Members of Parliament, however, touches on constitutional issues involving Parliamentary Privilege, the application of the Bill of Rights and the Claim of Right and the sovereignty of Parliament. It was therefore considered that this was not simply a question of law for the Law Commission but a question of policy which should be considered by Parliament itself. To assist this consideration the Home Office published a discussion paper: "Clarification of the law relating to the Bribery of Members of Parliament", in December 1996. This paper was formally submitted to the House of Commons Select Committee on Standards and Privilege and the House of Lords Committee on Privilege. The Government will consider the views of those committees and of any Parliamentary debate when they are to hand. The Law Commission has recently published a consultation paper on corruption. The Government would wish to reflect carefully on comments received on that paper before it reaches a view on whether and how the law on corruption needs amendment.

  1.3  Although the Nolan Committee, and earlier the Salmon Commission, proposed consolidation of the corruption statutes, implementing the recommendation to clarify the law relating to the bribery of Members of Parliament would require substantive legislation. Other suggestions for substantive amendments to the corruption statutes have been made, notably by the police service, in evidence to the Nolan Committee, and by the Crown Prosecution Service. The Government considers that it would be right to take into account these, and other views about the current legislation, before bringing firm proposals to Parliament.

  1.4  There is work underway in international fora on corruption. The convention and protocol on corruption which have been elaborated in the European Union do not affect the statute law on corruption in any way. Work in the Council of Europe, on a criminal law convention on corruption, and in the Organisation for Economic Co-operation and Development (OECE) on a recommendation or convention on the bribery of foreign public officials will not, as far as can be ascertained from the present state of the work, require significant amendment to the existing legislation in the United Kingdom. However, the formulation of the offences under discussion in these fora may be helpful in determining whether any updating of the corruption statutes is necessary in addition to the consolidation exercise.

  1.5  This paper reviews the existing statutes and clarifies proposals which have been made for amendment and extension of their scope. Possible options for change are set out to illustrate the issues under discussion and to assist further debate and should not, at this stage, be regarded as Government policy; neither should the inclusion of any proposal in this paper be regarded as an indication of Government suport for it. Nonetheless the Government would welcome views on the issues set out in this document.

 CHAPTER 2. EXISTING STATUTES

  2.1 The three existing corruption statutes are:

    (a)  the Public Bodies Corrupt Practices Act 1889;

    (b)  the Prevention of Corruption Act 1906; and

    (c)  the Prevention of Corruption Act 1916.

a.   the Public Bodies Corrupt Practice Act 1889

  2.2  This Act makes the active or passive bribery of a member, officer or servant of a public body a criminal offence. The definition of a public body was amended by the 1916 Act to include: "local and public authorities of all descriptions" (section 4(2)). Any body with public or statutory duties to perform, other than one run for private profit, comes within its scope (DPP v Holly (1978) AC43).

  2.3  Specifically, the Act prohibits a person covered by the Act, whether by himself, or in conjunction with any other person, from corruptly soliciting or receiving, or agreeing to receive, for himself, or any other person, any gift, loan, fee, reward or advantage whatever as an inducement to, or reward for, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the public body is concerned. A person may also not corruptly promise, or offer, any gift, loan, fee, reward, or advantage whatsoever, to any person, whether for the benefit of that person, or of another person, as an inducement to or reward for doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the public body is concerned.

  2.4  The maximum penalties for offences committed under this Act are:

    —  on summary conviction, six months imprisonment, or a fine not exceeding the statutory maximum, or both;

    —  on conviction on indictment, seven years imprisonment, or an unlimited fine, or both.

  In addition, the following penalties may be applied:

    —  liability to pay to the public body in question the amount or value of any gift, loan, fee or reward received, or any part thereof;

    —  prevention from being elected or appointed to any public office for five years from the date of conviction and forfeiture of any office held at the time of the conviction;

    —  on second conviction for a like offence, prevention for ever from holding any public office and prevention, for five years, from being registered as an elector, or voter, for elections to Parliament or any public body;

    —  forfeiture of any right or claim to compensation or pension to which the person might otherwise be entitled.

  2.5  The consent of the Attorney General or the Solicitor General is necessary for a prosecution under the 1889 Act (section 4) or indeed the 1906 Act (section 2). In Scotland the Lord Advocate's consent is only required for a prosecution under the 1889 Act.

b.   the Prevention of Corruption Act 1906

  2.6  This Act deals with the corrupt transactions of agents. Agents are prohibited from corruptly accepting or obtaining, or agreeing to accept or attempting to obtain, from any person, for themselves, or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do any act, or for showing or forbearing to show favour or disfavour to any person, in relation to his principal's affairs or business.

  2.7  It is an offence for any person corruptly to give or agree to give, or offer, any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act, or for showing or forbearing to show favour, or disfavour, to any person in relation to his principal's affairs or business.

  2.8  It is also an offence for any person knowingly to give to any agent, or for any agent knowingly to use, with intent to deceive his principal, any receipt, account or other document, in respect of which his principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal.

  2.9  The maximum penalties for offences committed under this Act are:

    —  on summary conviction, six months imprisonment, or a fine not exceeding the statutory maximum, or both;

    —  on conviction indictment, seven years imprisonment, or an unlimited fine, or both.

c.   the Prevention of Corruption Act 1916

  2.10  This Act creates a presumption of corruption in certain cases prosecuted under the 1889 and 1906 Acts. If it is proved that any money, gift or other consideration has been paid, or given to or received by a person in the employment of Her Majesty, or any Government Department or public body, by or from a person, or agent of a person, holding or seeking to obtain a contract from Her Majesty, or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned in the Act in question, unless the contrary is proved.

  2.11  As noted above (paragraph 2.2), the 1916 Act extended the definition of public body to include local and public authorities of all descriptions.

  2.12  The courts have held, in relation to all three Acts, that "corruptly" means purposely doing anact which the law forbids as tending to corrupt. It does not have the same meaning as "dishonestly."(R v Wellburn (1979) 69 Cr. App. Rep. 254CA).

 CHAPTER 3. COMMENT ON THE STATUTES

a.   Overlap between the statutes

  3.1  The Prevention of Corruption statutes have provided the United Kingdom with generally effective legislation to combat the crime of corruption and have, to a large extent, stood the test of time. In discussions on international instruments on corruption, the UK legislation has proved to have a broader reach than that of many countries. Nonetheless, there are concerns about the scope and overlap of the existing legislation, about the difficulty of interpreting language and concepts used in the statutes, in a modern context, and about procedural difficulties that have arisen from certain of their provisions. It is these concerns which form the basis of the calls for consolidation and amendment of the statutes.

  3.2  The offences created by the 1889 and 1906 Acts cover broadly similar ground, but there are differences in the detail of the offences. The 1889 Act is clearly concerned only with public sector corruption. This is reflected in the penalties available under the Act which extend to loss of voting rights and eligibility to hold public office. However, the 1906 Act, though it appears to be aimed principally at private sector corruption, in that the offences are described in terms of agents and principals, also, by virtue of section 1(3) applies to servants of the Crown, or to officials in any public body. However members of public bodies (as opposed to officials) appear to be excluded from the ambit of the 1906 Act.

  3.3  There are two further points of difference between the two Acts which are noteworthy. The 1906 Act extends to cases involving false documentation; there is no equivalent provision in the 1889 Act. Also the 1906 Act refers to attempts to obtain gifts etc, whereas the 1889 Act refers to soliciting of such gifts. This may be significant in that the solicitation of a gift may not necessarily be regarded by a jury as anything more than merely preparatory (and therefore not an attempt under the provisions of the Criminal Attempts Act 1981) to the obtaining of such a gift. It would be a question of fact in every case.

  3.4  In order to overcome these difficulties it might be thought appropriate that there should be one offence of corruption which applies to the public and private sector alike and that the offence should be defined in such a way as to include all the conduct currently covered by both existing Acts.

  3.5  It is certainly arguable that the boundary between the public and private sectors is less rigid today than it used to be. Many public sector functions are now carried out by private contractors or have been privatised completely. There are also numerous instances of public bodies wholly owning companies which trade as commercial entities—such as direct labour organisations.

  3.6  In the light of the above the Government believes that there may be some justification in the suggestion that has been made for having a single offence of corruption. The additional penalties available under the 1889 Act could, if there is general support for their retention in any amended legislation, be applied at the discretion of the court where the court believes that it is in the public interest for the offender to be subject to those measures.

b.   Extent of the statutes

  3.7  The 1906 Act uses the term principal and agent. Though agent is defined fairly widely as including "any person employed by or acting for another" it is debatable as to whether it extends to trustees, particularly of a private trust. The 1889 Act is restricted to public bodies and therefore acts, for example, of members of a local authority, who might be bribed to vote in a particular way at a caucus meeting, which had an effect on public policy, are probably not covered by existing statute law, though the common law offence of bribery may apply.

  3.8  The term "corruption" does not only apply to bribery. As has been stated the 1906 Act applies to offences involving false documentation. There may also be situations where persons use their position to obtain an unfair advantage for themselves or another, which may fall within the common law offence of Misuse of Public Office. For example, if an officer of a committee of a local authority influenced or encouraged a member to vote in a particular way, the acts would be corrupt but bribery would not necessarily be involved.

  3.9  It is for discussion as to whether existing statute or common law adequately covers these activities.

  3.10  The Government, however, considers that there is a case for considering extending the existing statutes to cover trustees and all situations where a person has a duty, whether express or implied, to use their impartial judgment on an issue.

c.   Enforcement

  3.11  The presumption of corruption set out in the 1916 Act applies only to gifts to persons in the employment of the Crown, a Government Department, or a public body, from a person holding or seeking a contract with the Crown, Department or body. It has been suggested that this presumption could be extended either to all situations where it can be shown that a person has received a gift, etc, from someone who has an interest in the actions of the person in question, or at least to members of public bodies and to non-contractual situations.

  3.12  Reversing the burden of proof in criminal cases is a serious step to take and requires full justification. Nonetheless in circumstances where a person is expected to exercise impartial judgment, it is arguable that that person should order his or her private affairs in such a way as to avoid any impression of corrupt activity. It may be reasonable therefore to expect a person in these circumstances to justify any questionable payments made to them. The Government therefore believes that it is right to consider carefully an extension of the presumption of corruption.

  3.13  There is a requirement in the 1906 Act (section 2(3)), that, in England and Wales, every information under this Act shall be on oath (this provision was not repealed by the Magistrates' Courts Act 1952). It is suggested that this provision is somewhat antiquated and may cause confusion and uncertainty on the part of prosecuting authorities.

  3.14  Offences under the 1889 and 1906 Acts are arrestable under the provisions of section 24 of the Police and Criminal Evidence Act 1984. They fall within the definition of a serious arrestable offence under section 116 of that Act only if it can be shown that the offence in question would lead to substantial financial gain or serious financial loss to any person. Such consequences may not be clear at the beginning of an investigation. Some evidence which might clarify the extent of the offence may only be obtained under special procedures (for example, the examination of bank accounts), which will only be authorised by a Crown Court Judge for the investigation of a serious arrestable offence. To overcome this difficulty it has been suggested that corruption offences should be serious arrestable offences, per se, under the provisions of part II of Schedule 5 of the 1984 Act. Separate consideration would have to be given to the position in Scotland where the relevant parts of the 1984 Act do not apply.

  3.15  The Government recognises the difficulty of investigating offences of corruption, which are, by definition, secret offences where the effect, or indeed recognition that any offence at all has been committed, may not be apparent for some time. Nonetheless corruption does not fit easily with the other offences which are always serious arrestable offences under the provisions of Schedule 5. These are serious offences against the person, or the state, or involve terrorism. It may be difficult to justify extending this Schedule to include corruption. But corruption is regarded as a more serious crime than simple dishonesty and the international concern about this kind of crime and the difficulty of investigating this offence may justify exceptional measures. The Government would welcome views on this point.

d.   Jurisdiction

  3.16  The jurisdiction of the criminal courts of the United Kingdom is territorially based and this policy was endorsed by the Government following an inter-departmental review, which reported in July 1996. Though that review proposed guidelines, which were approved by the Government, which could be used to evaluate exceptional proposals to take extra-territorial jurisdiction, it seems unlikely that corruption would fall within the scope of such exceptions.

  3.17  The offence of corruption, by its nature, can take place in more than one jurisdiction. The courts have held that, in England and Wales, provided one element of a corrupt transaction (the offer, acceptance, or an agreement to accept) takes place within the territory of England and Wales the courts will have jurisdiction over the offence. There are indications that the extent of the statutes are not widely understood, notably in the commercial sphere. It has been suggested that the jurisdictional extent of the offences should be set out on the face of any new legislation, for the sake of clarity. In Scotland there is no case law dealing directly with the question of the extent to which the Scottish courts can assume jurisdication over offences of corruption where some of the relevant activities have taken place abroad. Express clarification in statute would therefore appear to represent an improvement on the current position in Scotland.

  3.18  There have been suggestions in some international fora that this jurisdictional basis does not give the United Kingdom sufficient reach to regulate and control the activities of its nationals and companies who may be engaging in corrupt activities overseas. But the reach of the United Kingdom legislation would catch any corrupt act where an element of the corrupt transaction took place in this country.

  3.19  There are proposals under discussion to make preparatory acts in this country, to an act of corruption abroad, which amount to conspiracy or incitement, an offence. Thus, for example, The Board or senior management of a UK based company who authorise the use of bribes abroad, in order to secure business, could, if these proposals were eventually enacted, attract criminal liability in the UK provided that the bribe in question is unlawful where it is made.

CHAPTER 4. POSSIBLE DEFINITIONS

  4.1  Much of the concern expressed about the existing statutes relates to the archaic language and formulations, which remain extant, and in particular, to the definition of the offence of corruption as acting "corruptly". Though it is not the purpose of this paper to propose draft legislation, the Government considers that it would be helpful to review possible alternative definitions as an aid to debate.

  4.2  The courts have taken a robust attitude to suggestions that it is difficult to interpret the term "corruptly". In R v Wellburn and others (1979) 69 Cr App R 254 CA, the Court of Appeal approved the direction of the Recorder of London that: "Corruptly is a simple English adverb and I am not going to explain it to you except to say that it does not mean dishonestly. It is a different word. It means purposefully doing an act which the law forbids as tending to corrupt." The court pointed out that the mischief aimed at by the modern statutes dealing with corruption is to prevent agents and public servants being put in positions of temptation.

  4.3  A person does not have to show favour in consequence of having received a gift, the prosecution have merely to prove that a person received a gift as an inducement to show favour, for that gift to be corrupt(R v Carr (1957) 40 Cr App R 188). A person who accepts a gift knowing that it is intended as a bribe is guilty of an offence even if he does not intend to carry out what is expected of him (R v Mills (1979) 68 Cr App R 154 CA).

  4.4  There is therefore, a considerable body of case law which clarifies the definition of corruption. However recent work in international fora, in particular the Council of Europe, has focused on attempting to define the behaviour which is corrupt. Though none of this work has yet been completed, one example of a possible definition is:

    —  the intentional promise, offer, or gift by any person, directly or indirectly, of an advantage of any kind whatsoever to a person, as undue consideration for themselves, or for anyone else, to act or refrain from acting in the exercise of their functions, or the intentional request or receipt by a person, directly or indirectly, of an undue advantage of any kind whatsoever, for themselves or for anyone else, or the acceptance of offers or promises or such advantages to act or refrain from acting in the exercise of their functions.

  4.5  This definition and those below are not intended as a draft for inclusion in legislation, but simply to illustrate the current thinking in the international sphere.

  4.6  The "mens rea" in this example is the intention to provide or receive an undue advantage. The assumption is that if, in the circumstances of the case, the advantage reaches a level where it might affect the actions of the person in question it is undue—and therefore corrupt. Trifling advantages such as small gratuities or Christmas presents, would not usually fall within the ambit of an offence described in this way.

  4.7  But this definition is clearly related to bribery and does not include false documentation (covered by the 1906 Act) or improper influence. Separate definitions would be needed to cover these acts. Possibilities include, for false documentation:

    —  knowingly preparing or using an invoice which incorrectly describes a transaction, or reason for a transaction;

    —  knowingly failing to record a payment where there is a requirement to so record;

    —  knowingly preparing or using accounts which include false invoices or other records.

  4.8  The concept known to several continental jurisdictions as trading in influence is perhaps better described in the United Kingdom as misuse of office. A possible definition of this offence might be:

    —  for a person to influence intentionally, directly or indirectly, a decision, in order to gain an undue advantage for himself, or any other person.

  4.9  The Government has included these definitions in this document to assist discussion. It is not, at this stage, recommending any formulation for a revised offence. However, these definitions provide an indication of the issues which need to be addressed before new legislation can be brought forward.

CHAPTER 5.  SUMMARY AND CONCLUSION

  5.1  The Government would welcome comments on the issues raised in this paper and on any other points relating to the law on corruption that respondents would wish to make.

  5.2  Specifically the Government would welcome views on:

    —  the creation of a single offence of corruption to cover both public and private sectors (paragraphs 3.4-3.6);

    —  the need to extend the statutes to cover trustees and to include misuse of office (paragraph 3.10);

    —  amendments to the legislation to aid enforcement (paragraphs 3.16-3.19).

  5.3  The Government considers that responses to this paper, and to the Law Commission paper on corruption offences and the emerging conclusions of the work in international fora should lead to it being in a better position early next year to determine whether and how to amend the law on corruption.

  5.4  Comments on this paper should be sent by 30 June 1997 to:

    Lee Hughes

    Sentencing and Offences Unit

    Criminal Policy Directorate

    Home Office

    Room 320

    50 Queen Anne's Gate

    London SW1H 9AT

  5.5  Unless confidentiality is requested, it will be assumed that responses can be made available to others.


 
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