Corruption and Bribery Theory and history Bribery and

Corruption and Bribery – Theory and history

Bribery and Corruption – the harms • a bribe society? • a bribe world ? – bribery and international aid – Bribery and globalisation • • Old boys, good old boys and nepotism Do bribes = corruption? Extortion and bribery? Public and private sector?

The core case – the Judge nullus Justitiarius de Banco Regis vel de communi Banco nec aliquis Baronum de Scaccario quamdiu in officio Justitiarii vel Baronis fuerit capiat decetero per ipsum vel per alium clam vel palam robam feodum pensionem donum vel rewardum de aliquo preterquam de Rege nec exennium de aliquo preterquam exennium de cibo et potu quod non sit magni valoris. (8 R II c. 3 (1384))

The Common Law Offence Bribery of a public official "the receiving or offering of any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity" (Russell on Crime). Definitional matters “public office” MP is not a public official (Greenaway)

Common law Extortion ex virtute officii (till 1968, now blackmail: Theft Act 1968 s. 21) Misfeasance in public office Conspiracy to defraud

Sale of Offices Act 1551 (5 & 6 Edw VI c. 16); Sale of Offices Act 1809 (49 Geo 3 c. 12) Representation of the People Act 2000 Offences against Administration of Justice Honours (Prevention of Abuses) Act 1925

Public Bodies Corrupt Practices Act 1889 1. Corruption in office a misdemeanour. — (1) Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned, shall be guilty of a misdemeanour. (2) Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanour.

7. Interpretation. In this Act— The expression “public body” means any council of a county or county of a city or town, any council of a municipal borough, also any board, commissioners, select vestry, or other body which has power to act under and for the purposes of any Act relating to local government, or the public health, or to poor law or otherwise to administer money raised by rates in pursuance of any public general Act, [and includes any body which exists in a country or territory outside the United Kingdom and is equivalent to any body described above]: The expression “public office” means any office or employment of a person as a member, officer, or servant of such public body: The expression “person” includes a body of persons, corporate or unincorporate: The expression “advantage” includes any office or dignity, and any forbearance to demand any money or money’s worth or valuable thing, and includes any aid, vote, consent, or influence, or pretended aid, vote, consent, or influence, and also includes any promise or procurement of or agreement or endeavour to procure, or the holding out of any expectation of any gift, loan, fee, reward, or advantage, as before defined.

Prevention of Corruption Act 1906 1. Punishment of corrupt transactions with agents. — (1) If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; or If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; or If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal: he shall be guilty of a misdemeanour, and shall be liable …

(2) For the purposes of this Act the expression “consideration” includes valuable consideration of any kind; the expression “agent” includes any person employed by or acting for another; and the expression “principal” includes an employer. (3) A person serving under the Crown or under any corporation or any. . . , borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act. (4) For the purposes of this Act it is immaterial if— (a) the principal’s affairs or business have no connection with the United Kingdom and are conducted in a country or territory outside the United Kingdom; (b) the agent’s functions have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom.

Prevention of Corruption Act 1916 2. Presumption of corruption in certain cases. Where in any proceedings against a person for an offence under the Prevention of Corruption Act 1906, or the Public Bodies Corrupt Practices Act 1889, it is proved that any money, gift, or other consideration has been paid or given to or received by a person in the employment of His Majesty or any Government Department or a public body by or from a person, or agent of a person, holding or seeking to obtain a contract from His Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned in such Act unless the contrary is proved. See

“Public body” • 4. Short title and interpretation. • … • (2) In this Act and in the Public Bodies Corrupt Practices Act 1889, the expression “public body” includes, in addition to the bodies mentioned in the last-mentioned Act, local and public authorities of all descriptions [including authorities existing in a country or territory outside the United Kingdom). ] • (3) A person serving under any such public body is an agent within the meaning of the Prevention of Corruption Act 1906, and the expressions “agent” and “consideration” in this Act have the same meaning as in the Prevention of Corruption Act 1906, as amended by this Act.

Presumption of corruption only applied in public sector and does not apply to prosecutions brought as a result of ATCSA 2001 (s. 110) Presumption of Corruption only applies to the extent that it is consistent with ECHR Article 6. 2 (Sheldrake [2004] UKHL 43)

Principals and agents in the 1906 Act (i) Follows from the ‘loyalty’ rationale for bribery so implies that there should be a defence of consent. (ii) Doesn’t explain why the criminal law need be involved at all. (Treason? Incitement to Disaffection? )

Meaning of ‘Corruptly’ Silber J’s additional memo to the Joint Parliamentary Committee on the Draft Corruption Bill 2003). Silber J gave six possible meanings: (i) in Cooper v. Slade (1858) 6 HL Cas. 746; 10 ER 1488, concerning bribery at elections and the Corrupt Practices Act 1854, in which Willes J took the view that the word "corruptly", as it appeared in the legislation, did not mean "dishonestly" but that it meant "purposely doing an act which the law forbids as tending to corrupt voters". (ii) in the Bradford Election Case (No. 2) (1869) 19 LT 723, 728, Martin B held that corruptly was not otiose and had to be given some meaning which he stated was akin to an evil mind. (iii) more modern case of Lindley [1957] Crim LR 321 the defendant was charged under the 1906 Act with bribing the servants of a company as an inducement or reward for setting up a contract for a supply of peas, Pearce J interpreted "corruptly" as meaning a dishonest intention "to weaken the loyalty of the servants to their master and to transfer that loyalty from the master to the giver". Lindley was followed in Calland [1967] Crim LR 236, in which case the defendant, an inspector of a life assurance company, was charged under the 1906 Act with rewarding an agent of the Ministry of Social Security for keeping him informed about the names and addresses of the parents of new-born children. Veale J held that "corruptly" meant "dishonestly trying to wheedle an agent away from his loyalty to his employer"; and, therefore, if the defendant's actions amounted to "sharp practice" and not "dishonesty", he was not guilty of corruption. (iv) In Smith [1960] 2 QB 423, where the defendant was charged under the 1889 Act with offering a gift to the mayor of the borough of Castleford in order that the mayor should use his influence with the borough council in favour of the defendant, the Court of Appeal approved the dictum of Willes J in Cooper v. Slade. Nevertheless, the Court of Appeal adopted a fourth view because according to Lord Parker CJ, "corruptly" here used ' denotes that the person making the offer does so deliberately and with the intention that the person to whom it is addressed should enter into a corrupt bargain" (ibid, at p 428). Lord Parker recognised that this construction arguably rendered the word "corruptly" redundant. He suggested, however, that even if this were so in cases involving inducements, the word "corruptly" might have an independent function in the case of rewards (ibid, at pp 428 -429). (v) In Wellburn (1979) 69 Cr App R 254, involving charges under the 1906 Act as in that case the Court of Appeal again approved the words of Willes J, taking the view that "corruptly" was an "ordinary word", the meaning of which would cause a jury little difficulty (ibid, at p 265, per Lawton LJ). This was at a time when the courts wre quite keen on treating the meaning of ordinary words as matters of fact for juries (Brutus v Cozens [1973] AC 854; Feely [1973] QB 530 &c) (vi) R v. Harvey [1999] Crim. L. R. 70 the Court of Appeal held that dishonesty was not an element of obtaining "corruptly" within section 1(1) of the 1906 Act. Instead, 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 person to whom it was made so as to encourage him to enter into a corrupt bargain. The Court of Appeal considered that dishonesty was a different concept from corrupt behaviour. (and see Williams [1998] EWCA Crim 1508 to like effect).

Others? (a) the definition used in the Draft Corruption Bill (“intended primarily to influence the performance by the agent of his duties”) (b) a version of Ghosh has a two-stage test for dishonesty under the Theft Acts viz: an act is dishonest if (a) it would be seen as dishonest by an `ordinary decent' person (i. e. , a jury member), and (b) the accused was aware of this. This would translate ‘an act is corrupt if (a) it would be seen as corrupt by an `ordinary decent' person (i. e. , a jury member), and (b) the accused was aware of this.

Conclusions (i) the 1889 -1916 Acts are not as bad as all that (ii) must a properly constructed law of bribery must have a public/private divide? (iii) bribery is about competition (iv) to the extent that the criminal law invokes specific legal duties in contracts there is a problem if they can be changed (v) a vaguer notion of the fault element (‘corruptly’ &c) may be better)

1997 onwards The International Agenda Lockheed scandal Tanaka (Japan) Prince Bernhard (NL) http: //en. wikipedia. org/wiki/Lockheed_briber y_scandals US Foreign Corrupt Practices Act (1977)

‘Implementation’ of OECD convention Anti-Terrorism, Crime and Security Act 2001 ss. 108 -110

British Aerospace • Allegations That British Aerospace bribed a member of the Saudi royal family to secure the Al. Yamama arms contract in the 1980 s.

BAe 14 th December 2006: The Serious Fraud Office (SFO) investigation into BAE's arms deals with Saudi Arabia was suspended. Nov 2007 Corner House case Bribery Act 2010 In force July 2011