1. The Joint Committee was appointed on 24 March
to consider the draft Corruption Bill published on that day as
Cm 5777. The draft Bill is based on a Law Commission draft issued
in 1998 as part of the planned codification of the criminal law.
This draft Bill is thus the product of a long and detailed process
of consultation. Its provenance includes:
Commission on Standards in Public Life (the Salmon Commission)
1976 Cmnd 6524
Report from the Committee on Standards in Public Life 1995 Cm
Office paper Clarification of the Law Relating to the Bribery
of Members of Parliament December 1996
Commission paper Legislating the Criminal Code: Corruption
1997 Consultation Paper no 145
Office paper The Prevention of Corruption: Consolidation and
Amendment of the Prevention of Corruption Acts 1889-1906: A Government
Statement June 1997
Commission report Legislating the Criminal Code: Corruption
1998 Report no 248
Committee on Parliamentary Privilege report March 1999 HL Paper
43 and HC 214
Office White Paper Raising Standards and Upholding Integrity:
the prevention of Corruption published in June 2000 as Cm
4759 January 2000 Cm 4557
Report 2000-01 from International Development Committee of the
House of Commons on Corruption March 2001HC 39-I.
2. The draft Bill seeks to replace both the common
law offence of bribery and most of the statutory offences contained
in this legislation:
Bodies Corrupt Practices Act 1889
of Corruption Act 1906
of Corruption Act 1916.
3. The draft Bill also seeks to ensure that UK law
complies with various international agreements which are either
in force or in preparation, such as:
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, Paris, 17 December 1997 (Cm.3994)
of Europe, Criminal Law Convention on Corruption (ETS no.173)
and Civil Law Convention on Corruption (ETS no. 174) (both Strasbourg
Convention drawn up on the basis of Article K.3(2)(c) of the Treaty
on European Union on the fight against corruption involving
officials of the European Communities or officials of Member States
of the European Union
Draft UN Convention on Corruption
of the inquiry
4. At the outset the Committee set out the main matters
on which it wished to take evidence:
a) What is the background to the draft Bill and what
other options could have been pursued? What are the reasons for
any changes from the Law Commission's 1998 report (No. 248) and
the 2000 White Paper (Cm. 4759)?
b) Whether proposed definitions are workable and
c) Whether they will be readily understood by police,
prosecutors, jurors, the public etc
i. Whether specific offences should have been
proposed for specific situations
ii. The effect of not making the new offences
iii. The effect of removing the presumption of
iv. Whether the agent/principal analogy is still
relevant, in particular in the case of public acts
v. The treatment of facilitation payments
vi. Should there be a public interest defence?
d) Whether the proposals are compatible with international
obligations and how they compare with equivalent law in other
e) Omission of misuse of public office and trading
f) Waiver of parliamentary privilege in cases involving
peers and MPs:
i. Attorney General's consent to prosecution
ii. relationship with Registration of Interests,
Codes of Conduct and Electoral Commission requirements on political
5. As our inquiry into the draft Corruption Bill
progressed, the Committee realised that these matters might require
to be refocused. The principal questions we have thus considered
a) Is the existing law on corruption so deficient
that it is necessary now to legislate?
b) If so, does the draft Bill criminalise conduct
which is corrupt without criminalising any conduct which is not?
c) Further, does the draft Bill state clearly what
types of conduct are punishable as corrupt in language which can
readily understood by the police, by prosecutors, by jurors and
by the public, including - especially - the business and public
sector communities, and their advisors, both here and abroad?
d) Should parliamentary privilege be waived in corruption
e) Should the Attorney-General's consent be required
for prosecution for corruption offences?
f) Should the intelligence services be exempt from
prosecution for corruption offences?
6. It is under the above headings - and especially
the second and third - that all of the other questions, important
but subsidiary, fall properly to be considered: what is the essence
of corrupt conduct? How might it be defined? What distinguishes
corrupt conduct from lawful conduct? Does this Bill draw that
line in the correct place? In particular, is Clause 5 of the Bill
- which confined corruptness exclusively to a principal/agent
relationship - both complete and robust, and is it clear so that
it can readily be understood by all relevant parties?
7. We sought evidence from interested parties and
are publishing with this report the memoranda we received and
the transcripts of the eight sessions of oral evidence taken in
the course of this inquiry. The full list of memoranda and witnesses
appears on pages 97 and 98..We are very grateful to all those
who gave us the benefit of their knowledge and experience. As
specialist adviser we appointed Peter Alldridge, reader at Cardiff
Law School and Professor-elect at Queen Mary College, London.
His advice and commitment have been invaluable. The other Committee
staff are listed on the inside cover of the report.
8. The Committee was not appointed until the day
the draft Bill was published: 24 March. We thus had no time to
prepare for the inquiry in advance of publication. The Committee
was ordered to report in four months - by 24 July. Prior commitments
and the Easter recess meant we could not start taking oral evidence
until early May. In all we have held 18 meetings, usually convening
twice a week.
9. We have considered first what are the essential
elements of corruption and how the criminal offences should be
framed. Secondly, we have examined the issue of parliamentary
privilege. Thirdly, we have looked at the Attorney-General's consent,
the intelligence services and other matters.
for new legislation
10. The existing law covers:
a) The common law offence of bribery. This is said
in the legal textbook Russell on Crime to be the receiving
or offering [of] any undue reward by or to any person whatsoever,
in a public office, in order to influence his behaviour in office,
and incline him to act contrary to the known rules of honesty
b) The Public Bodies Corrupt Practices Act 1889.
This created an offence of corruptly giving to (or receiving by)
an official of a public body. It uses terms such as "corruptly
give, promise, or offer any gift, loan, fee, reward, or advantage
as an inducement to or reward for
. doing or forbearing
to do anything
. actual or proposed, in which such public
c) The Prevention of Corruption Act 1906. This extended
corruption to the private sector and introduced the concept of
an agent as someone acting for another person or for a public
d) The Prevention of Corruption Act 1916. This increased
the penalty and now defines 'public body' widely to include 'public
and local authorities of all descriptions'. It also introduced
the presumption of corruption in public sector cases. This shifted
the burden of proof onto the defence to show that a given payment
was not corrupt.
11. The number of prosecuted offences of corruption
in recent years is set out in the chart below. The Audit Commission
told us that very few cases of corruption are reported to them.
Since 1995/96 the number of detected cases has averaged 43 a year,
with annual losses averaging £262,000.
On average, 21 people were prosecuted under three Prevention of
Corruption Acts in each year between 1993 and 2003.
Since 1988, the Serious Fraud Office has prosecuted seven cases
where corruption was a charge and a further three are currently
By comparison, an average of 23,000 defendants were prosecuted
each year for fraud between 1997 and 2001
and an average of three people have been prosecuted for insider
dealing in the 10 years to 2002.
The figures for corruption offences need to be treated with caution,
partly because the borders between these and other offences are
uncertain and partly because there is thought to be under-reporting
12. We have received no evidence which causes us
to dissent from the conclusion of the Law Commission in 1998 that
the present law is in an unsatisfactory state and that the common
law offences of bribery and statutory offences of corruption should
be replaced by a modern statute.
As Mr Justice Silber, who was responsible for the Law Commission
report, told us:
"The present law suffers from numerous defects.
It is drawn from a multiplicity of sources. Corruption offences
are to be found in at least eleven statutes, the most important
of which are the Prevention of Corruption Acts 1889 to 1916. Much
of that legislation was impulsive being prompted by contemporary
problems or fears. Thus it is neither comprehensive nor consistent.
There are also many overlapping common law offences such as misconduct
in public life, specific bribery offences, embracery (bribery
of juries). Against that background, it was not surprising that
the Royal Commission on Standards of Conduct in Public Life (Chairman:
Lord Salmon) recommended the rationalisation of the statute law
on bribery in its report in 1976".
13. Over the past few years there has been a growing
international movement on the part of the developed and the developing
world to eradicate corruption, demonstrated by a number of international
instruments and initiatives. It is in the interests of the United
Kingdom to be seen to play an effective part in this field, not
least because of its pre-eminent position in world financial markets.
While the passage of time and new international obligations are
two factors pointing to the need for new legislation, a third
is the increasingly complex relationship between the public and
private sectors. The old statutes are based on a clear separation
that may no longer be appropriate .
14. If the current law is "obscure, complex,
inconsistent and insufficiently comprehensive",
we must consider whether the draft Bill avoids these criticisms.
In particular, our evidence shows there is a general desire for
clarity in the new legislation on corruption. This is not just
for the benefit of those who may be involved in a trial - judge,
jury, defendant, lawyers. It is even more important that the law
should be understood by those going about their normal business
so that they understand how to abide by it and do not take decisions
which lead to the commission or apparent commission of a criminal
offence. So clarity is a key test when considering this draft
Bill. The wording should be easily translatable into foreign languages
to enable mutual legal assistance with other jurisdictions. Such
clarity may be aided by guidance notes but the Bill itself should
be clear and understandable.
15. Cases involving corruption can often involve
other offences and people have been prosecuted for those other
offences as well as, or instead of, corruption. The variety of
cases involving corruption which have been handled by the Crown
Prosecution Service in recent years is set out on page 160 of
our written evidence. These offences include:
under the Theft Acts
in public office
the course of justice
16. Following the scheme in the Law Commission's
draft Bill of 1998, this draft Bill builds on the current statutory
corruption offences and the common law bribery offence to create
three broad new offences:
a) Corruptly conferring an advantage (Clause
b) Corruptly obtaining an advantage (Clause 2)
c) Performing functions corruptly (Clause 3).
17. In these Clauses the only word which implies
illegality is 'corruptly'. So it is important to know how 'corruptly'
is interpreted. While most people think they know what it means,
in practice opinions differ. 'Corruptly' in Clause 1 is defined
in Clause 5 in terms of conferring an advantage, giving examples
of the actions and intentions of three people, A, B and C. This
definition is expressed in terms of agents and principals. The
offences, drawn from the existing statutes, are combined in the
draft Bill to apply both to the public and private sector. There
is a distinction in that the 'consent of the principal' (Clause
7) is a defence in private but not in public sector cases. Defining
offences in terms of A, B and C could be read as illustrative
or as exclusively definitive. It is not clear which it is.
1 For a full description of the present law, see the
Law Commission's 1998 Report Legislating the Criminal Code:
Corruption No 248 Back
12th ed 1964 p 361 Back
Ev 159 DCB 28 para 6 Back
Official Report I July 1999 col 252-3W and 6 November 2001 col
Ev 16 Back
Crime in England and Wales 2001/02, supplementary volume, Home
Official Report 26 January 2002 c1144w Back
Law Commission No 248 para 2.33 Back
Ev 98 para 3 Back
Law Commission 1998 No 248 para 1 Back