Joint Committee on the Draft Corruption Bill Memoranda


DRAFT CORRUPTION BILL

Memorandum from Lord Falconer of Thoroton QC,

Minister of State for Criminal Justice, Sentencing and Law Reform

This memorandum sets out the Government's thinking on some of the issues of concern to the Joint Committee. These include the need for the Bill, its complexity and the definition of 'corruptly'. This memorandum sets the Bill in the wider context of the need to update, consolidate and ultimately codify the criminal law. It argues that the appearance of complexity belies the fact that underneath the principles are clear and sound. Thirdly, the memorandum seeks to explain why we believe the term 'corruptly' must be defined and retained. Offering the Bill in draft should, the Government hope, allow proper debate on the exact nature of corruption and how far the criminal law should extend in this area. The definition provides the clarity needed in the law and also the foundation for proper debate on the principles.

Codification

2. The Government is committed to reforming the criminal law as a whole to make it more readily accessible to practitioners, the courts, and the public at large. It is unsatisfactory to have provisions strewn across a number of statutes and the common law, and further interpreted by case-law. The law on corruption is a good example of the complex nature of the law at present.

3. The Government accepts codification is a long term aim and an incremental approach is necessary. This is not just a matter of consolidation and tidying up. In many areas the law is out of date or inadequate and fundamental reform is needed.

4. In 1992, the Law Commission adopted a policy of reviewing areas of the criminal law so that one by one they would be modernised (where appropriate) before being assembled into a code. This represents a first step in an incremental approach to delivering a more accessible, codified and modern law.

5. The Law Commission's report on Corruption in 1998 followed reports on offences against the person, involuntary manslaughter, the year and a day rule in homicide, money transfers, rape within marriage, computer misuse, intoxication and hearsay. They looked at the law of corruption because of widespread concern - starting with the Salmon Commission in 1976 - that the Prevention of Corruption Acts 1889 - 1916 were in need of review and reform. The Law Commission consulted widely on their proposals in 1997 and the great majority of respondents agreed with their view that the law of corruption was in an unsatisfactory state and that it should be restated in a modern statute.

6. The Government shares that concern. The law on corruption is spread across three statutes, and has been recently amended again in the Anti-terrorism, Crime and Security Act 2001. It is also contained in the common law. Quite apart from the need for reform we believe this is inherently unsatisfactory and the time is right to bring this legislation into one place, building on the thorough and important work done by the Law Commission in this area.     

Clarity

7.  The need to express concepts in terms of statutory drafting often leads to apparent complexity. This is particularly so in the present case where the criminality involves three parties. (This contrasts with most criminal law where the basic offences have two parties, the defendant and complainant - where three parties are concerned, as for example in conspiracy, further complexity is inevitable.) But we would argue that in spite of the apparent complexity, the underlying principles are clear and simple. We believe that when it comes to its operation in the courts - in particular cases with their individual circumstances, as opposed to its consideration as a Bill as a whole with all the various permutations possible to be considered - it will not in fact prove troublesome. But we would welcome any suggestions from the Committee on how to make the Bill more accessible.

8.  In particular while the Bill, like many Acts of Parliament, may be difficult for jurors to comprehend in itself, we do not think that judges will be unable, in any particular case, to direct jurors' minds to the facts at issue in that case. We enclose examples of the kind of questions that we envisage jurors would have to answer.

9.   These examples demonstrate that at the heart of the definition of corruption is the "primarily" test, that is whether the advantage was intended to be the primary influence on the agent. It is worth noting in passing that the NHS guidance on Commercial Sponsorship uses a similar test in that it permits staff to attend meetings where hospitality is provided as long as the hospitality is 'secondary to the purpose of the meeting'.

Definition of 'corruptly'

10.  The Committee suggested that it might be possible to omit any definition of 'corruptly' and leave this to the courts and juries to determine. This is attractive - we all feel instinctively that we know what we mean by bribery and corruption, and the Bill could be seen as only muddying the waters on this point. But we do not think this is right. Bribery (the core activity within corruption) is a term widely used but very often not in circumstances which would be corrupt or should be caught by the criminal law. For example, many parents 'bribe' their children to do their homework or work for exams. Similarly, 'corruption' can be used in a wide moral sense, way beyond the kind of corruption envisaged in the Bill.

11.  We do not consider that the courts have come up with any satisfactory definition of corruption. In the case of R v Harvey [1999] Crim.L.R. 70, the Court of Appeal, whilst ruling that dishonesty was not an element of the offence, said that the word "corruptly" was to be construed as meaning deliberately offering money or other favours with the intention that it should operate on the mind of the offeree, so as to encourage him to enter into a corrupt bargain. We do not consider that this provides the certainty that is to be expected of the criminal law. It has been argued that jurors will recognise a case of corruption when it is before them. But relying on this instinctive approach is likely to mean that only the more blatant cases of corruption are investigated and prosecuted. Furthermore, it does not enable the public at large and, in particular perhaps, the business community to know with any certainty what is and what is not criminal behaviour.

12.  The attempt to define this elusive concept lies at the heart of the Law Commission's scheme. This scheme was widely welcomed in consultations carried out both by the Law Commission in 1997, and by the Government in its White Paper on Corruption in 2000. It is designed to, and in our view does, reduce the areas of uncertainty in the current law.

New Specific Crimes

  

13.  We have looked at the draft South African Prevention of Corruption Bill with a view to the proposal that our Bill should include a range of specific crimes, rather than attempting to encapsulate corruption in 3 wide-ranging general offences.

14. Whatever the merits of this model in the South African situation, we are not minded to adopt it for the UK. That would be to move in the opposite direction to that recommended by the Law Commission - not only in their Corruption Report, but also in their Fraud Report (2002), which recommends the replacement of the existing 8 separate offences of deception under the Theft Acts 1968-96, and the common law of conspiracy to defraud. The multiplicity of offences has not proved helpful in practice in the case of fraud, or of corruption. By contrast, the South African legislation creates 23 separate offences, as well as reinstating the common law of bribery, which they abolished in 1992. Some of these offences are very clearly covered by the general offences in our Bill (for example, "bribery of public officer" and "bribery of foreign public officials"). Others are dealt with by other offences in our law (for example "intentional obstruction of investigation of offence"). Others criminalise behaviour which we do not think should be criminal (offence for a public official not to report a corrupt offer).

   Agent and Principal

15.  The agent-principal relationship is a central concept in the Bill. It is not a particularly difficult concept, and has been used in corruption law since 1906. Whilst it is possible to envisage a scheme that is based on other concepts, that would be to create a very different offence and overturn the Law Commission's scheme.

16. Some of the Committee's witnesses were not in favour of clause 7, which provides that no offence of corruption is committed where the principal for whom the agent performs the functions in question gives his consent to the receipt by the agent of an advantage. Clause 7 contains two important caveats - that the functions are performed for a principal and not for the public; and that though consent may be given on the principal's behalf by an agent, that consent is not valid if it is itself given corruptly.

17. The Law Commission explained the thinking behind this provision at paragraph 5.90 of their report:

 "We now believe that the offence should be confined to conduct intended to induce a particular agent to act primarily in return for an advantage, thus creating a potential conflict with that agent's duty to further the interests of his or her principal. It is the function of the law of corruption to avoid such conflicts. But we cannot see how any conflict can exist if the agent's principal knows all the circumstances and consents to what is done".

18.  That does not mean to say that the conduct may not breach some other statutory prohibition - for example, general competition law may be relevant.

   Other offences

19. I note that some witnesses have called for the Bill to include some other types of crime - notably 'misuse of office' - which do not fall within the Bill as it stands. The debate on corruption is certainly complicated by the fact that the word itself has different meanings to different people. 'Misuse of office' is a complex area which needs detailed consideration, but we believe this is separate from, and should not hold up progress on, reform of the law on corruption. The present reform concentrates on the area examined by the Law Commission - that is the Prevention of Corruption Acts 1889-1916, which are concerned with corruption in the narrow sense of 'bribery'. While there is clearly a case for codification of other parts of our criminal law, we do not think we can address those issues in the timeframe within which the Joint Committee is working for this Bill.

20.  I will be glad to discuss these issues and of course any other issues when I appear before the Committee on 4 June. I remain very much open to suggestions from the Committee as to improvements to the draft Bill to enhance its clarity and effectiveness. And I look forward to discussion on the principles of what should or should not be considered corrupt, and on other aspects of the Bill, including the difficult issue of the position of Members of Parliament.

Lord Falconer

May 2003

Annex: Questions the court might put to jurors

Public sector examples

Jones applied to the local authority for a pub licence. Jones is alleged to have offered Peterson, a local authority official in charge of licensing, unlimited free drinks in return for the grant of a licence. Peterson is alleged to have accepted the offer.

Questions for the jury where Jones is the defendant

1.  Did Jones offer Peterson unlimited free drinks from Jones' pub once open?

2.  Did Jones believe that if Peterson granted the licence it would be primarily in return for the free drinks?

If the answer is "yes" to both questions, Jones is guilty of a clause 1 offence. Otherwise he is not guilty.

Questions for the jury where Peterson is the defendant

1.  Did Peterson agree to receive unlimited free drinks from Jones' pub once open?

2.  Did Peterson know or believe that Jones made the offer believing that if Peterson granted the licence it would be primarily in return for the free drinks?

If the answer is "yes" to both questions, Peterson is guilty of a clause 2 offence. Otherwise he is not guilty.

Private sector examples

Jones is alleged to have paid £10,000 to Peterson, who is an employee of company X, in return for the award of a contract.

Questions for the jury where Jones is the defendant

1.  Did Jones pay the money to Peterson?

2.  Did Jones believe that if Peterson granted the contract it would be primarily in return for the £10,000?

3. Did any of the following apply:

(i) Did company X know of the circumstances and consent to the payment being made?

(i) Did Jones believe that company X knew of the circumstances and consented to the payment being made?

(iii) Did Jones believe that company X would have consented to the payment being made if it had known of the circumstances?

If the answer is "yes" to questions 1 and 2 and "no" to question 3, Jones is guilty of a clause 1 offence. Otherwise he is not guilty.

Questions for the jury where Peterson is the defendant

1. Did Peterson receive the money from Jones?

2. Did Peterson know or believe that Jones paid the money believing that if Peterson granted the contract it would be primarily in return for the money?

3. Did any of the following apply:

(i) Did company X know of the circumstances and consent to the payment being made?

(ii) Did Peterson believe that company X knew of the circumstances and consented to the payment being made?

(iii) Did Peterson believe that company X would have consented to the payment being made if it had known of the circumstances?

If the answer is "yes" to questions 1 and 2 and "no" to question 3, Peterson is guilty of a clause 2 offence. Otherwise he is not guilty.




 
previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 6 June 2003