Joint Committee on The Draft Corruption Bill Minutes of Evidence


Memorandum from the Crown Prosecution Service (DCB 15)

  As in many countries few "private to private" corruption cases are prosecuted in the UK. The bulk of public to private corruption cases which come before the courts currently are prosecuted under other offences (such as fraud). The present framework of offences in the area of corruption is workable. However, from time to time, there can be confusion over the ambit of an offence. A rationalisation of the law in this area could be beneficial.

1.  WHETHER PROPOSED DEFINITIONS ARE WORKABLE AND SUFFICIENT:

1.1  A.  Whether they will be readily understood by police, prosecutors, jurors, the public etc.

  We anticipate that the following definitions could be problematic and give rise to some uncertainty as to their ambit:

    —  Clause 1 (corruptly conferring an advantage) and clause 2 (corruptly obtaining an advantage) are on the face of it very wide offences which are only qualified in limited circumstances by later exception clauses (clauses 6 and 7): how wide are they intended; problems of proof in non-pecuniary advantage.

    —  "Clause 3": a person commits an offence if he performs his functions as an agent corruptly even if does not receive any reward. Therefore even if he performs his function in expectation of or hope of a reward he will come under this clause.

    —  "Functions": What exactly is a function?

    —  "Clause 11" (meaning of agent and principal): this could be either public or private.

    —  "Clause 7" (principal's consent to no corruption): a private principal can consent to something which would otherwise be corrupt but where functions are of a public nature the principals consent cannot exonerate. This could give rise to problems where the public/private functions are blurred.

1.2  B.  Whether specific offences should have been proposed for specific situations

  No, we favour a more elastic approach with a general framework rather than rigid charges to reduce the risk of cases falling through the net.

1.3  C.  The effect of not making the new offences retrospective

  We do not envisage any significant problems with this.

1.4  D.  The effect of removing the presumption of corruption

  The CPS supports this change. The distinction between private and public has become increasingly unclear. The increase in privatisation and the public/private partnerships has removed any relevant distinction. There will be no practical effect as we have rarely prosecuted a case in recent years in which we relied on the presumption.

1.5  E.  Whether the agent/principal analogy is still relevant, in particular in the case of public acts

  We support the reasoning behind the definition of corruption in the Bill based on the agent/principal analogy.

1.6  F.  The treatment of facilitation payments

  It is hard to envisage circumstances where the CPS would prosecute a case involving a small payment made as a result of extortion

1.7  G.  Should there be a public interest defence?

  The CPS is not in favour of a public interest defence as it could open the door to all sorts of spurious defences.

  For instance a public interest defence might allow a defendant to say "I bribed X because I wanted to prevent the criminal Y from getting the contract etc. And it could be argued that the defendant should not have to rely on the Crown to decide whether he has a defence or not .............."

2.  OMISSION FROM THE DRAFT BILL OF MISUSE OF PUBLIC OFFICE AND TRADING IN INFLUENCE

  2.1  The common law offence of misconduct in public office is now being used more frequently. It is particularly useful in dealing with the behaviour of police officers when their conduct has been broadly corrupt. There is certainly some confusion as to the elements of the offence (indeed a potential reference is being considered by the Attorney). However further consideration and consultation is recommended on the matter.

  2.2  "Trading in Influence": we considered this potential offence and comparable European legislation eg a similar offence in France. However although the French provision is called "Trading in Influence" it is actually corruption in the sense that we understand it.

  The scope of what we understood "Trading in Influence" to be would have been very wide ranging without the agent/principal analogy. It would have been problematic when applied to the activities of some groups such as lobbyists.

3.  WAIVER OF PARLIAMENTARY PRIVILEGE IN CASES INVOLVING PEERS AND MPS

3.1  A.  Attorney's consent to prosecution

  The CPS view is that the Attorney General's consent is not necessary. The CPS was a member of the interdepartmental working group set up by the Home Office to consider the Law Commission's proposals on the reform of the law of corruption. The working group agreed with the Law Commission recommendations to remove the consent provisions in the 1889 and 1906 Acts. It was pointed out that no consent was needed for the common law offence of bribery. When deciding to give consent to the commencement of criminal proceedings the Law Officers apply the criteria set out in the Code for Crown Prosecutors and take into account the advice of the Crown Prosecution Service.

  The consent of the DPP could act as a necessary check against private prosecutions which are not in the public interest. If reduced to the DPP's consent alone that would mean an individual prosecutor could take the decision under the Director's delegated authority.

  PLEASE NOTE THAT the views in relation to the Attorney General's consent are solely those of the Director of Public prosecutions and the CPS. The Attorney General has stated that he wishes to reserve his judgement on this point; and that he will make his views known when he appears before the Committee in June.

May 2003


 
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