Joint Committee on The Draft Corruption Bill Written Evidence


Memorandum from The Criminal Bar Association (CBA) (DCB 20)

  1.  The following features of the Bill are welcome:

    (a)  rationalisation of the pre-existing statutory and common law confusion;

    (b)  an intention to satisfy the UK's international obligations;

    (c)  abolition of the presumption of corruption;

    (d)  consistency between the public and private spheres;

    (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 consent.

  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 clauses; and

    (d)  certain inconsistencies of phrase and punctuation.


  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 law—and the moral precepts upon which it is based—to 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 comprehensible.

    (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 the margin.


  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[50], 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 England[51] 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 cannot—subject to the suggestions herein—do 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).

June 2003

50   69 Cr App R 387. Back

51   [2000] 2 WLR 1220.


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