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
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
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
"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
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
We do not envisage any significant problems
1.4 D. The effect of removing the presumption
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
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
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
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
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