Joint Committee on The Draft Corruption Bill Written Evidence


APPENDIX 9

Memorandum from Mr Drago Kos, Chairman, GRECO (DCB 12)

1.  FOREWORD

  I feel it is a personal privilege for me, as well as a recognition of the work and the role of the Council of Europe's (hereafter, "CoE") "Group of States against corruption—GRECO" (hereafter, "GRECO"), to be invited to submit comments on the draft Corruption Bill before its adoption. Although I recognise that the reason for this invitation lies mainly in my current position as GRECO's Chairman, I have performed this duty in my personal capacity, to the best of my knowledge and experience and in good faith. I accept full responsibility for the content of the present submission and express, from the outset, my willingness to provide any additional explanations and details which are deemed necessary in the course of an oral hearing, should the House consider this a useful step.

  I have often been confronted in the performance of my functions, both at international and domestic levels, with the analysis of anti-corruption legislation. Since its creation in 1999, GRECO has devoted considerable attention to the adequacy of legislation when evaluating whether or not its members comply with international anti-corruption standards. Moreover, during its first evaluation round (2000-02) GRECO addressed recommendations to its member States. As a result, several of them have introduced new legislation or amended their existing legislation and GRECO is currently assessing whether or not the said legislative measures comply satisfactorily with GRECO recommendations.

  I have therefore read the draft Corruption Bill in detail and weighed carefully the comments I can make about it. I should express at the outset my firm belief that, generally speaking, the draft legislation under examination does not call for a large number of remarks from my side. It should be underlined, at this stage, that none of my comments should be interpreted as an official GRECO position or as prejudging the results of any future evaluation by GRECO of the UK legislation.

  It is worth noting that the objectives and purposes of the draft are clearly spelled out and that the explanatory notes greatly assist the reader in easily understanding the intentions of the drafters. GRECO was obviously informed about the fact that new legislation was under preparation in the United Kingdom. There was among GRECO members considerable interest in accessing the new draft. This can be explained by the outstanding contribution made by the UK delegation—in particular by its head, Mr. Paul Stephenson—to GRECO's activities, as well as by the results of the first GRECO evaluation report on the UK, which had shown high political commitment to react efficiently against corruption, in line with international standards and recommendations made by international monitoring bodies, such as GRECO. There was little doubt that the new draft would confirm the clear anti-corruption stance taken by Britain in international fora and the commitment of its highest political representatives to fight corruption in all possible ways.

  My training and legal culture being "continental", it may be that I do not fully understand the—for me—unusual drafting style of the draft under review. As a result, misunderstandings might have occurred making some of the observations I make pointless. Should that be the case, I apologise in advance.

  The opinion on the draft Corruption Bill follows the text of the Articles. Whenever I have made no comments or observations, it means that, in my opinion, the text of the draft is in full compliance with international legal instruments and standards, does not leave room for misinterpretation and will not entail practical difficulties of implementation in day-to-day practice.

2.  THE TEXT OF THE BILL

Part 1—Sections 4, 5, 6 and 7

  The CoE's Criminal Law Convention on Corruption refers repeatedly to "undue advantage", a concept which is explained in detail in the explanatory memorandum. By comparison, the text of sections 4 and 5 of the draft bill refers only to "an advantage". The reference of an unqualified "advantage" entails a widening of the scope of the offence, which would cover more ground than required by CoE and other international standards. This leads to the need to provide for exceptions in sections 6 and 7, which describe situations where the advantage cannot be characterised as an undue one. This strict approach followed by the drafters raises the standards beyond what is required internationally and must be considered as a positive development, which will simplify the application of the provisions in question. It might be worth considering, however, the possibility of adding additional language to explain the reasons for sections 6 and 7 in order to avoid misinterpretation.

Sections 5 and 10

  In section 5, sub-sections 1(b) and 2(b) and in section 10, sub-sections 1(a) and 2(b) one finds the following wording: "primarily in return for the conferring of the advantage" and "primarily in order to secure that a person confers an advantage". It is doubtful whether this solution is in line with the requirements of international conventions. But, beyond that, it seems to me that the insertion of the word "primarily" in the draft can give rise to difficulties of implementation in everyday practice. It would introduce a sort of graduation of the intent, allowed by the use of the word "primarily", which could make it more difficult to prove the "mens rea", the genuine intention of the perpetrator. It might be expected that the accused persons will base their defence on this graduation by trying to cast reasonable doubts about the extent of the intent to commit the corruption offence. Consequently, it would weaken the whole system.

Section 11

  Although it is probably a problem of a general nature neither this section nor the explanatory note thereto, allow the reader to understand what would happen if the briber (ie person C from section 5) was not a UK national (since only the agent and the principal are mentioned here) and the corruption offence takes place in the UK. Does section 14 solve this problem?

Section 12

  It is unusual to find such an ambitious legal text in comparative law. The drafters deserve to be praised as this provision witnesses the genuine will and strong commitment of the British legislator to tackle corruption seriously.

Section 13

  Once again, this is probably a problem of a general nature but neither this section nor the explanatory note thereto allow the reader to understand what would happen if a foreign national committed a corruption offence abroad and was arrested in the UK. Could he/she be prosecuted in the UK? According to my understanding the UK does not follow the so-called "universal jurisdiction" principle enabling the authorities to prosecute corruption cases, involving foreign nationals, which have been committed overseas.

Sections 15 and 16

  No international treaty would allow an exemption from the general criminalisation of corruption like the one included in this section. Even admitting the "special" or "unusual" nature of the activities of intelligence services and the strict conditions laid down in these two sections, there is no doubt that the text of the draft is not in compliance with the CoE's Criminal Law Convention on Corruption or with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

  There would be other means to deal appropriately with the issue at stake but the approach followed in these sections does not fit with the general spirit of an ambitious national anti-corruption legislation like the draft Corruption Bill.

Section 17

  As pointed out in the GRECO evaluation report on the UK it is hard to understand why the Attorney General in England, Wales, Northern Ireland or Director of Public Prosecutions for Northern Ireland (after the changes of the Justice Act) need to give their consent to start the proceedings. Neither the legal provision nor the explanatory notes thereto give any explanation for that particular requirement. Even if there are clear and well-defined criteria for the exercise of these powers, it is highly unusual that the highest prosecutorial authority in a country is required to give his/her consent for the prosecution of each and every corruption offence. Corruption is an offence, which deserves all possible attention in the phases of detection and investigation but when it comes to the prosecution, the requirement of the AG's consent might give rise to serious misinterpretation and favour a perception of political interference in prosecutorial functions. This would be detrimental to the image of the UK as a country in the frontline of the combat against corruption. At the very least, the decision to retain the requirement of the AG's consent for prosecuting corruption offences would deserve additional explanatory language.

3.  CONCLUSION

  The UK Corruption Bill is, generally speaking, a sound piece of legislation, highly innovative in a number of respects. This overall positive assessment of the draft is, to a certain extent, weakened by the inclusion of certain provisions—I refer here, in particular, to sections 15, 16 and 17—which do not seem to be up to international standards and contradict the high ambitions of the text under scrutiny. Especially the content of sections 15 and 16 is in direct opposition to international legal instruments in the field of corruption and might attract heavy and undeserved criticism towards the whole draft. There is hardly any reasonable legal explanation for the text of sections 15 and 16. It would be worth reconsidering, in addition, the proposal to maintain the procedural requirement in section 17, even if other overall quality of the British legal system and reputation of its practitioners will minimise, in practice, the potential negative effects of such a provision. I am deeply convinced that without these three sections the Corruption Bill would serve as a model for other European anti-corruption laws throughout Europe .

May 2003





 
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