THE LAW COMMISSION LEGISLATING THE CRIMINAL CODE: CORRUPTION CONTENTS Paragraph Page PART I: INTRODUCTION 1 The background to this report 1.1 1 The significance of this project to the objective of codification of the law 1.8 3 Previous reform proposals 1.11 4 The Home Office consultation document 1.14 6 International initiatives 1.16 6 Scope of the project 1.21 8 Members of Parliament 1.21 8 Scotland 1.23 8 False documents 1.24 9 The structure of the report 1.26 9 PART II: THE PRESENT LAW AND THE NEED FOR CHANGE 11 The present law 2.2 11 The common law offence of bribery 2.2 11 The statutory offences 2.6 12 The 1889 Act 2.7 13 The 1906 Act 2.11 14 The 1916 Act 2.15 15 Problems with the present law 2.17 16 “Public bodies” 2.17 16 The presumption 2.18 16 Agents 2.20 16 The inapplicability of the presumption 2.22 17 Persons connected with agents 2.23 17 Persons who have been, or are to become, an agent 2.24 18 Purported agents 2.25 18 Applicability of corruption laws to police officers, judges and local councillors 2.26 18 The meaning of “corruptly” 2.29 19 Our provisional conclusion, the response on consultation and our recommendation 2.31 20 1 PART III: THE DISTINCTION BETWEEN PUBLIC BODIES AND OTHERS 21 The significance of the distinction in the present law 3.3 21 The 1889 Act 3.4 21 The scope of the offences 3.5 21 Third parties 3.5 21 People who have been, or are to become, agents 3.6 21 Penalties 3.7 22 The presumption 3.8 22 The distinction between a person serving under a public body and a person serving under a non-public body. 3.10 22 The definition of a public body 3.11 23 The Local Government and Housing Act 1989 amendment 3.15 24 Public bodies outside the United Kingdom 3.17 24 Should the distinction be retained? 3.19 25 The diminishing importance of the distinction 3.19 25 Possible arguments in favour of the distinction 3.27 26 Is public sector corruption more serious than private sector corruption ? 3.28 26 Is the public more in need of protection than the private sector? 3.29 27 Is there a need for higher standards of conduct in the public sector? 3.31 27 Our provisional proposals and the response on consultation 3.34 28 PART IV: THE PRESUMPTION OF CORRUPTION 30 The presumption 4.5 31 Historical reasons for the creation of the presumption 4.10 32 Justifications for the presumption 4.15 33 The Redcliffe-Maud Committee 4.16 33 The Salmon Commission 4.17 34 The presumption and the European Convention on Human Rights 4.20 34 Does the presumption infringe the ECHR? 4.21 35 The presumption of innocence 4.22 35 Possible implications of the CJPOA 4.31 38 The effects of the presumption and the CJPOA compared 4.37 40 Establishing a case to answer 4.38 41 The existing law 4.38 41 If section 2 were repealed 4.39 41 Where the defendant adduces no evidence 4.43 42 The existing law 4.43 42 If section 2 were repealed 4.44 42 Where the defendant does not testify but adduces other evidence 4.45 42 The existing law 4.45 42 2 If section 2 were repealed 4.46 43 Where the defendant testifies 4.47 43 The existing law 4.47 43 If section 2 were repealed 4.48 43 Options for reform, our provisional proposal and the response on consultation 4.49 43 Option 1: extend the presumption 4.52 44 Option 2: the Hong Kong option 4.55 46 Option 3: reduce the weight of the burden imposed by the presumption 4.59 46 Option 4: abolish the presumption 4.61 47 Arguments against the presumption 4.62 47 Arguments from principle 4.63 47 Practical considerations 4.67 48 The shortcomings of the presumption in its present form 4.67 48 The CJPOA 4.68 48 Arguments in favour of the presumption 4.71 49 Corruption is more difficult to prove than other offences 4.71 49 Standards of probity should be higher in the public sector 4.73 50 Consistency with Scotland 4.75 51 Our recommendation 4.76 51 PART V: FORMULATING A MODERN LAW OF CORRUPTION 52 An outline of the scheme we recommend 5.2 52 The essential character of corruption 5.4 53 Breach of duty 5.5 53 The functions of an agent as an agent 5.11 55 The agency relationship 5.15 56 Terminology 5.15 56 Defining the agency relationship 5.17 57 The general definition 5.20 58 Private agency relationships 5.21 58 Quasi-fiduciary relationships 5.25 59 Mixed relationships 5.28 60 The list of examples 5.29 61 Transnational agency relationships 5.31 61 Agents with private foreign principals 5.31 61 Agents acting for the public interest of another country 5.32 62 Agents acting on behalf of international intergovernmental organisations 5.35 63 Our recommendation 5.36 63 The concept of advantage 5.38 64 3 The offences 5.44 65 Corruptly conferring, or offering or agreeing to confer, an advantage 5.45 66 Advantage conferred on a person other than the agent 5.47 66 Intermediaries 5.48 66 Our recommendation 5.50 67 Corruptly obtaining, soliciting or agreeing to obtain an advantage 5.51 67 Corruptly performing functions as an agent 5.54 68 Agent receiving benefit from corruption 5.59 69 “Corruptly” 5.62 70 Is a definition necessary? 5.63 70 Corruptly conferring an advantage as an inducement 5.67 71 Corporate hospitality 5.75 73 “Sweeteners” 5.83 75 Bribee unaware of corrupt purpose 5.85 76 Proper remuneration or reimbursement 5.86 76 Things done with the consent of the principal 5.88 76 Our recommendation 5.99 79 Corruptly conferring an advantage as a reward 5.100 80 Former and future agents 5.110 83 Corruptly obtaining or agreeing to obtain an advantage 5.112 84 Corruptly soliciting an advantage 5.119 85 Corruptly performing functions as an agent 5.121 86 Dishonesty 5.123 86 Is corruption an offence of dishonesty? 5.123 86 Should the definition of corruption include a requirement of dishonesty? 5.131 89 Possible defences 5.135 90 Disclosure 5.136 91 No obligation to account 5.138 91 Normal practice 5.139 91 Small value 5.142 92 Entrapment 5.144 93 Public interest 5.151 95 PART VI: THE INVESTIGATION OF CORRUPTION 97 The SFO and section 2 of the Criminal Justice Act 1987 6.3 97 Powers of the SFO 6.3 97 Safeguards for the person investigated 6.8 98 Comparison of the powers of the SFO and the CPS 6.10 99 Comparison of the powers of the SFO and the police 6.11 100 The powers of the DTI 6.12 100 Section 2 and the ECHR 6.18 101 The options 6.23 103 4 Responses on consultation 6.24 103 Conclusions 6.28 104 PART VII: TERRITORIAL JURISDICTION, THE ATTORNEY-GENERAL’S CONSENT TO PROSECUTION AND OTHER ANCILLARY MATTERS 105 Territorial jurisdiction 7.2 105 The present law 7.3 105 The Criminal Justice Act 1993 7.9 106 The effect of extending the CJA 1993 to corruption 7.11 107 Our provisional proposal and the views of respondents 7.14 107 Our recommendation 7.15 108 Ancillary matters 7.16 108 Requirement of the Attorney-General’s consent 7.16 108 The need for consent 7.17 108 Views of respondents 7.22 110 Mode of trial 7.27 111 Sentence 7.29 112 Retrospectivity 7.31 112 PART VIII: CORRUPTION AND BREACH OF DUTY 113 Two basic law reform questions 8.1 113 The first question 8.2 113 Acting contrary to duty: the radical approach 8.2 113 The second question 8.5 114 Corruption by means other than bribery 8.5 114 The present law and its deficiencies 8.9 115 Blackmail and breaches of duty procured by threats 8.9 115 Breaches of duty procured by deception 8.14 116 Whether offences of procuring a breach of duty by threats or deception are offences of corruption 8.15 116 Our conclusion 8.20 117 PART IX: OUR RECOMMENDATIONS 118 The present law and the need for change 118 The presumption of corruption 118 The agency relationship 118 The concept of advantage 119 The offences 119 “Corruptly" 120 Territorial jurisdiction 122 Ancillary matters 122 5 APPENDIX A: DRAFT CORRUPTION BILL 122 APPENDIX B: EXTRACTS FROM RELEVANT LEGISLATION 131 Public Bodies Corrupt Practices Act 1889 131 Prevention of Corruption Act 1906 133 Prevention of Corruption Act 1916 134 Criminal Justice and Public Order Act 1994 134 APPENDIX C: LIST OF PERSONS AND ORGANISATIONS WHO COMMENTED ON THE CONSULTATION PAPER 138 6 ABBREVIATIONS IN THIS REPORT WE USE THE FOLLOWING ABBREVIATIONS: ACPO: the Association of Chief Police Officers the 1889 Act: the Public Bodies Corrupt Practices Act 1889 the 1906 Act: the Prevention of Corruption Act 1906 the 1916 Act: the Prevention of Corruption Act 1916 Archbold: Archbold – Criminal Pleading, Evidence and Practice (1997 ed, ed P J Richardson) the CBI: the Confederation of British Industry the CJA 1987: the Criminal Justice Act 1987 the CJA 1993: the Criminal Justice Act 1993 the CJPOA: the Criminal Justice and Public Order Act 1994 CIPFA: the Chartered Institute of Public Finance and Accountancy the CPS: the Crown Prosecution Service the Convention: the European Convention on Human Rights the DPP: the Director of Public Prosecutions the DTI: the Department of Trade and Industry the ECHR: the European Convention on Human Rights the FLP: the Financial Law Panel the Home Office consultation paper: The Prevention of Corruption – Consolidation and Amendment of the Prevention of Corruption Acts 1889–1916: A Government Statement (June 1997) ILEX: the Institute of Legal Executives the MCCOC: the Model Criminal Code Officers Committee established by the Standing Committee of Attorneys-General of Australia the MCCOC Report: the final report of the MCCOC, Chapter 3: Theft, Fraud, Bribery and Related Offences (1995) the Neill Committee: the Committee on Standards in Public Life, formerly the Nolan Committee (Chairman: Lord Neill of Bladen QC) 7 the Nolan Committee: the Committee on Standards in Public Life, now the Neill Committee (Chairman: the Rt Hon the Lord Nolan)