Memorandum from The Criminal Bar Association
(CBA) (DCB 20)
1. The following features of the Bill are
(a) rationalisation of the pre-existing statutory
and common law confusion;
(b) an intention to satisfy the UK's international
(c) abolition of the presumption of corruption;
(d) consistency between the public and private
(e) avoidance of retrospectivity;
(f) avoidance of employing specific offences
for particular factual circumstances;
(g) waiver of Parliamentary Privilege; and
(h) a requirement for the Attorney-General's
2. The following features of the Bill may
give rise to concern:
(a) the extra-territorial extension created
by clause 13;
(b) the absence of "dishonesty"
as an element of the offences;
(c) the intricacy of the wording of some
(d) certain inconsistencies of phrase and
3. The justification for this radical departure
is given in paragraph 2.23 of the White Paper. It seeks to place
the UK in a moral vanguard by exporting part of its criminal lawand
the moral precepts upon which it is basedto the behaviour
of British nationals/companies engaged wholly abroad. As presently
drafted this would include actions taken in a foreign country
which might in that other country be neither illegal nor even
morally disapproved. It might be one thing thus to "export"
our criminal law in the area of, for instance, War Crime, but
another to do the same in the case of a crime with a proposed
maximum sentence of only seven years. The Joint Committee may
wish to consider whether, for instance, a British citizen who
has lived and worked for many years in Country A (outside the
European Union) operating the received business practices of that
country should, if those practices offend against that which would
henceforth be illegal in the UK, be deemed to commit a criminal
offence triable in the UK. Such a citizen/company might feel that
he/it had been put at an unfair disadvantage simply because he
was british/incorporated here. Might his surprise upon being arrested
at the airport, having been away from home for so long, be understandable?
Might the objections of practice and principle be answered, consistently
with our having signed the 1999 Corruption Convention, were the
extra-territoriality restricted to the European Union? As a minimum
safeguard should not a "dual criminality" provision
be included as an additional element of any such foreign offence?
4. Several examples have been suggested
to us which may indicate the problems presented by such a provision.
They include, for instance, the suggestion that "nepotism"
is not recognised as an unacceptable practice in certain areas
of Africa which enjoy primarily tribal disciplinary systems, that
in the Democratic Republic of Congo foreign travellers are often
prevented from pursuing their journeys through a town unless the
resident official is paid a "road tax" (which is in
fact a corrupt advantage), that those travelling between Mauritania
and Morocco through the Western Sahara (which is officially closed)
must negotiate with a local official the size of the "fine"
(which is again in fact a corrupt advantage) which will permit
them to travel with a military convoy. And so on.
5. In addition there are obvious practical
problems (and cost considerations) involved in trying such "crimes"
in the UK. Finding witnesses, securing their attendance (even
by TV link) will almost always be difficult. Gathering documentary
evidence (without the co-operation of the keeper the documents)
will often be impossible. These practical and cost difficulties
are likely to be more pronounced in practice for the defence than
for the Crown. The fairness of any resulting trial may routinely
be the subject of dispute. Might the Crown (or indeed the Defence)
not often find itself as a matter of course applying to read a
substantial proportion of its evidence under the provisions of
section 23 Criminal Justice Act 1988? Would that be satisfactory?
6. Section 109 of the Anti-Terrorism, Crime
and Security Act 2001, which made similar provisions for the existing
collection of corruption offences, seems to have received less
attention than might have been occasioned had it not formed part
of a fast tracked Act formulated in response to the events of
the 11 September 2001. The 2001 Act contained 129 sections and
8 schedules, was published and given its first reading on the
12 November 2001, given its second reading on the 19 November,
reached the House of Lords by the 26 November and was given the
Royal Assent on the 13 December. The instant Bill may represent
a good opportunity to consider at rather greater leisure the issues
raised by extra-territorial extension.
7. (a) "Corruptly" is the
main issue (see below). The arguments in favour of "dishonesty"
as the basis for the criminalisation of this sort of conduct are
well described in the joint BC and CBA response of 1997. The potential
advantages of a scheme based on "dishonesty" have plainly
been rejected completely by the draftsman, but will need to be
reconsidered by the Joint Committee.
(b) "Intention", "belief"
and "primarily" set a high test for the Crown. Whether
that test is set at the right level is a political question. All
three are concepts easily comprehensible to a jury.
(c) "Nature" in clauses 5(3) and
8(2) is wide enough to cover all that is intended. It is jury
(d) "Principal", "agent",
"A", "B", and "C" (in particular
in clauses 5 and 7) are areas of potential difficulty for a jury
when read in the abstract, but once translated into the evidence
of a case by a judge's directions should be comprehensible.
(e) "Secures" and "regards"
may be ill-advised (see below).
(f) "Functions . . . of a public nature"
is satisfactorily covered by explanatory note 32.
8. The transitional test proposed is sensible.
Whatever test is adopted it may throw up factual challenges at
9. This ancient common law offence (often
referred to as Misfeasance in Public Office) will, if excluded
from this Bill, continue to be charged in a variety of situations
where "corruption" is absent. The leading criminal authority
(from the Court of Appeal) is R. v. Dytham,
which establishes, amongst other things, that neither corruption
nor dishonesty is a necessary element of the offence. The parallel
tort, which springs from the same historical source, has the great
advantage of recent and comprehensive attention from the House
of Lords. Thus, following the judgment in Three Rivers District
Council and others v. The Governor and Company of the Bank of
the essential elements of the tort are clear, but those of the
crime are not. Indeed the imbalance of authority has produced
the perhaps unprecedented situation in which the mental element
required for commission of the tort is greater than that required
for the commission of its parallel crime. We doubt whether such
an oddity could survive consideration of the elements of the crime
by the House of Lords. But when will that be? This Bill may represent
an opportunity to correct the defect by statute.
10. The definition upon first reading undoubtedly
appears complicated, but is plainly the product of very careful
thought. It seems to encompass and exclude respectively the many
and varied factual permutations which most people would wish to
criminalise or to excuse subject to the question of Dishonesty.
It is unlikely that a standard jury direction can be extrapolated
from this clause, but its apparent intricacy should evaporate
as soon as the abstract definition is translated onto the facts
of a specific case. The essence of corruption is probably to most
minds the subversion of duty. Whether the definition provided
by this section captures this essence in a way that can easily
be understood without the assistance of a lawyer is another question.
11. This issue has split the Working Party.
The competing alternative candidates for the Joint Committee's
consideration are (i) "dishonestly" as an alternative
to "corruptly" and (ii) "dishonestly" as an
additional element in all the new offences. We would not advocate
the former. The Chair of our working party suggested that the
words "dishonestly intending to influence another" could
be added to the actual offences themselves. This would enable
the layman (and others) to understand what the offence of corruption
was on the face of the sections themselves and would introduce
the safeguard of dishonesty to cover areas such as Lord Waddington's
baggage handler example which some would see as a grey area.
12. A majority of this Working Party favoured
option (ii). One advantage of adding "dishonestly" is
its potential to prevent too mechanistic a definition working
injustice "in the real world". It would, for example,
cater for de minimis circumstances, give greater discretion
to juries, and act as a safety valve (eg in the extra-territorial
example in paragraph 3 above). It would soften any harsh implications
flowing from a questionable decision to prosecute in a variety
of factual circumstances all future permutations of which it would
be impossible now to predict. We have found it hard to identify
a hypothetical set of facts which we would wish the Bill to catch
which did not in fact involve dishonesty. Experience suggests
that a jury would be likely to look for dishonesty as a guide
in its deliberations whether directed to do so or not, but if
"dishonesty" or "dishonestly" is not an element
of the offence under their consideration any evidence specifically
designed to establish its presence or absence is likely to be
denied to them as inadmissible.
13. Many of these same considerations may
equally be seen by others as disadvantages. One man's "discretion"
is another man's "blur". "Dishonesty" as a
necessary element of the offences may offer a bolthole, or at
least the impression of a bolthole, to the unrealistic or unmeritorious
defendant. A technical definition offers the chance to improve,
rather than merely to reflect, existing mores. In an extra-territorial
context "dishonesty" and its legal definition (which
combines both objective and subjective elements) would beg the
question "Whose version of dishonesty?" Once included
in the definitions it is likely that dishonesty would in most
contested cases become the focus of attention for most juries.
14. There is undoubtedly an aesthetic attraction
in the spare logic of the Bill's scheme. If its abstraction is
to be preferred to what would otherwise inevitably be a long list
of specific offences designed to include and exclude the same
factual permutations, we cannotsubject to the suggestions
hereindo any better. Our attempts to come up with something
simpler have failed. If the present structure of the Bill is to
be maintained we would offer the following limited suggestions
with a view to clarity and consistency.
15. (a) Clause 8(1)(a) may be improved
by the deletion of "he" before "omits".
(b) Clause 8(2)(b) may be improved by replacement
with "the act or omission of that other person is done or
made in consequence of his request (express or implied) or with
the result (direct or indirect) that he benefits".
(c) Clause 9(1)(b) may be improved by replacement
with "he either requests it or gives his express or implied
consent to obtaining it, or both".
(d) Clause 9(2) may be improved by replacement
of the last "agrees" with "does so" (thus
mirroring clause 5(1)).
(e) Clause 10(1)(a) may be improved by replacement
with "he does an act or makes an omission primarily in order
that a person should confer an advantage (whoever may obtain it)".
Why the introduction of ". . . secure that . . ."?
(f) Clause 10(2) may be improved by replacement
of (a) and (b) with "(a) he knows or believes that a person
has corruptly conferred an advantage (whoever obtained it), and
(b) he does an act or makes an omission primarily in return for
the conferring of that advantage". Why the introduction of
"regards"? Is the subjective nature of the test not
plain in any event?
16. Why is it necessary to state the definition
of "corruption offences" more than once? Surely 12(2),
13(3), 15(9) and 17(4) could be removed and their content set
down once in a separate clause within Part I?
17. (a) Replace ";" with ",
and" at end of 4(1)(a), 5(1)(a), (b) and (c), 5(2)(a), (b),
(c) and (d), 6(2)(a), 6(3)(a), 6(4)(a), 7(1)(a), 8(1)(a), 10(1)(a),
10(2)(a), 13(1)(a), 13(2)(b) and 16(3)(b).
(b) Replace ";" with ", or"
at end of 11(1)(a) and (b), 11(2)(a), 15(7)(b), 16(4)(a) and 18(a).
(c) Replace ";" with ","
at end of 13(2)(a), 15(7)(a) and 16(3)(a).
This scheme should achieve consistency with
clauses 1, 2, 9, 15(4) to (6) and 16(2).
50 69 Cr App R 387. Back
 2 WLR 1220.