Bribery and corruption
Principle
Code for Crown Prosecutors - considerations
Bribery and corruption are extremely serious offences, which strike at the heart of public confidence in administrative and judicial affairs. This factor alone will weigh heavily when considering the public interest in prosecuting and a prosecution will be expected unless exceptional factors apply.
With reference to cases involving overseas corruption and the decision to prosecute or not prosecute in such cases please see section on overseas bribery.
The Prevention of Corruption Acts
In addition to common law offences corruption offences are found in at least 12 statutes: The main statutes are the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906 as supplemented by the Prevention of Corruption Act 1916 and the Anti-Terrorism, Crime and Security Act 2001 (which extends jurisdiction to overseas corruption). Other relevant statues are the Sale of Offices Act 1551; Sale of Offices Act 1809, Honours (Prevention of Abuses) Act 1925; Licensing Act 1964; Criminal Law Act 1967; Local Government Act 1972; Customs and Excise Management Act 1979; Representation of the People Act 1983.
The main statutes dealing with corruption are as follows:
The Public Bodies Corrupt Practices Act 1889
Section 1(1) of the 1889 Act makes it an offence for any person alone, or in conjunction with others, to corruptly solicit or receive, or agree to receive, for him/herself, 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, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the public body is concerned. (Archbold 31-131).
Section 1(2) of the 1889 Act creates a similar offence to that of section 1(1) above, in respect of anyone who corruptly gives, promises or offers any gift, etc. (Archbold 31-131).
The definition of a 'public body' is contained in section 7 of the 1889 Act (Archbold 31-134). This definition was amended and extended by section 4(2) of the Prevention of Corruption Act 1916 to apply to "local and public authorities of all descriptions". However, this definition does not include a government department or the Crown (R v Naci Vedat Natji, 2002 EWCA Crim 271), so corruption involving those persons should be charged under the 1906 Act, see below.
'Corruptly' in the 1889 Act does not mean 'dishonestly' but means "purposely doing an act which the law forbids as tending to corrupt" (Cooper v Slade 1851). "Corrupt" has not been defined in law.
Offences under the 1889 Act require the consent of the Attorney General, refer to Consents to Prosecute, elsewhere in the guidance.
The Prevention of Corruption Act 1906
The 1906 Act is very broadly worded; it makes it a crime to bribe any 'agent'. An agent is anybody employed by or acting for another, whether in the public or private sector.
Section 1 of the 1906 Act also creates offences relating to other corrupt transactions by and with agents in relation to their principal's activities, including making false statements or knowingly giving false documents to an agent, intending to mislead their principal. (Archbold 31-141).
'Agent' in the 1906 Act includes Crown Servants, but does not include councillors in local government, so those cases should be dealt with under the 1889 Act.
'Corruptly' in the 1906 Act does not mean 'dishonestly' but means a deliberate offering of money or other favours, with the intention to corrupt. (Archbold 31-149).
The prosecution does not have to prove that the defendant actually demonstrated favour as a consequence of having received the gift, as long as he received the gift as an inducement to show favour. (Archbold 31-149).
Offences under the 1906 Act require the consent of the Attorney General, refer to Consents to Prosecute, elsewhere in the guidance.
The Prevention of Corruption Act 1916
In 1916 the 'presumption of corruption' was introduced. This means if a person gives a gift to any employee of the Crown, a government department or a public body, and that person or their principal holds or seeks to obtain a contract from the Crown, a government department, or a public body, that gift shall be presumed to be corrupt unless the accused person can prove otherwise. This represents a 'reversal of the burden of proof'.
The Government has indicated that this law will be repealed when the law is reformed. The presumption does not apply to anything which is only an offence due to the provisions on overseas corruption within the Anti-Terrorism, Crime and Security Act 2001.
See Overseas bribery below.
The common law offence of bribery
Bribery and attempted bribery (i.e. where there is an offer to bribe, even if the offer is not taken up) are common law offences punishable by imprisonment or a fine at large, or both.
The formulation of the offence is broad. The scope is best summarised in the case of R v. Whitaker [1914] 3 K.B. 1283 which states that the common law offence of bribery is committed when a bribe is given or offered to induce a public official to fail to act in accordance with his duty.
In the case of R v. Gurney (1867) 10 Cox CC 550 the mental element was held to include an intention to produce any effect at all on the decision of a public officer.
The category of persons who may be bribed is extensive, including a person who is tasked with carrying out a public duty, for example, a jury member, a coroner and a member of the armed forces. (Archbold 31-129).
The offence of bribery is also committed by the person who receives the bribe. Receipt of the bribe can also be charged as the common-law offence of misfeasance in public office. (Archbold 25-381).
Case law suggests that entertainment and treats when of small value are not prohibited because they cannot be regarded as having been conferred in order to influence a person, or incline him to act contrary to the known rules of honesty and integrity (Woodward v. Maltby [1959] VR 794).
Overseas bribery
Part 12 of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001, section 108 clarifies that the existing offences of bribery and corruption apply to the bribery of foreign public office holders, including foreign MPs, judges, ministers and 'agents' (as defined by the Prevention of Corruption Act 1906). It amends the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916 to ensure that the corruption offences in the 1889 and 1906 Acts cover (respectively) the corruption of foreign public officials and foreign agents in the public or private sector.
Section 109 of the Act is a free-standing provision which gives the courts in England, Wales and Northern Ireland extra-territorial jurisdiction over bribery and corruption offences committed abroad by UK nationals and/or bodies incorporated under UK law. The relevant offences are (a) the common law offence of bribery; (b) the offences under section 2 of the Public Bodies Corrupt Practices Act 1889; and (c) the first two offences under section 1 of the Prevention of Corruption Act 1906. It thus enables bribery offences, when committed by UK nationals and bodies incorporated under UK law, to be prosecuted in the UK, wherever those offences take place. Section 109 applies not only to companies but also, for example, to limited partnerships. It does not apply to unincorporated bodies.
A company can also be held criminally liable if it can be shown to have authorised, directed or actively connived in an act of bribery by any of its overseas subsidiaries. This is by virtue of the laws of incitement and conspiracy. This would include, for example, directing a subsidiary to pay a bribe or providing the necessary funds to a subsidiary, knowing that they were to be used for a bribe.
Part 12 of the ATCSA came into force on 14 February 2002, thus cases where all elements of the criminality take place overseas can only be prosecuted in the UK if a relevant event took place after that date. If all elements of the alleged criminality took place before that date, a prosecution can still be considered, provided: (a) that some part of the crime took place in the UK; OR (b) that the offender was a UK national in the service of the Crown (see section 31 of the Criminal Justice Act 1948.)
The ATCSA also lifted restrictions on the sharing of information by the tax and customs authorities in support of criminal investigations or proceedings. Amendments to the Income and Corporation Taxes Act 1988, which came into force in July 2002, provide that payments made outside the UK which would have constituted a criminal offence if made within the UK will not be deductible for tax purposes.
See www.hmso.gov.uk/acts/acts2001/20010024.htm for the full text of the Act.
Where the bribery is of a witness, juror or official in legal proceedings, refer to the offences of Contempt of Court and Perverting the course of justice, elsewhere in the guidance.
Sanctions
The penalties for an offence under the 1889 Act include:
- imprisonment (not exceeding 7 years) and / or a fine (unlimited);
- requirement to pay to the "public body" the amount or value of any gift, loan, fee or reward received;
- forfeiture of public office and five-year ban on being elected or appointed to any public office;
- lifetime ban (on second conviction for a like offence) on being elected or appointed to any public office and five-year ban on being registered as a voter or voting at an election;
- forfeiture of right and claim to any compensation or pension for those employed by a public body;
- a person convicted of this offence may be made the subject of a financial reporting order, pursuant to the Serious Organised Crime and Police Act 2005, s.76
The penalties for an offence under the 1906 Act include imprisonment (not exceeding 7 years) and / or a fine (unlimited).
The penalty for common law offences, where statute does not provide, (including the related offence of Misconduct in Public Office and the offence of Perverting the Course of Justice) is unlimited fine or imprisonment entirely at the discretion of the Court, which means in effect that the maximum is life imprisonment. A variety of non-custodial penalties are available including disqualification from company directorship.
The following cases are offered by way of illustration:
R v Bush [2003] 2 Cr App R (S) 117 - the defendant was an officer in a local authority. He was convicted of accepting payments and other services over a period of six years in return for putting company names on the authorities contracts list so that they could tender for large contracts with the authority. A sentence of four years' imprisonment was reduced to two and a half years on appeal.
R v Donald [1997] 2 Cr App R (S) 272 - the defendant was a detective constable who accepted various sums (totalling £18,500) from a man who was the subject of criminal proceedings in return for the disclosure of confidential information about the inquiry and to destroy surveillance logs. He received a sentence of 11 years imprisonment.
As way of comparison the offence of fraud (section 1 of the Fraud Act 2006) carries a maximum penalty of 10 years' imprisonment and/or an unlimited fine.
Guidance
Evidential factors
The following questions could be pertinent in deciding whether the test of evidential sufficiency is met:
- was the offer made in the presence of more than one person who can therefore corroborate?
- was the offer serious and was it made on more than one occasion?
- was the offer reported as soon as practicable?
- did the defendant have the money or other advantage readily available to pay the bribe?
- did any money or other advantage pass hands?
- did the person making the offer receive encouragement to make it?
Charging practice
Common law Bribery will not often be charged, as there is a substantial overlap between this offence and the statutory offences relating to corruption.
Where the facts of the case amount to bribery or corruption prosecutors should prosecute for one or other of the statutory offences, but not both.
There is a large degree of overlap between the two principal Acts where the agents of public bodies are involved, but it should be noted that councillors in local government are not considered to be agents, and corruption of such councillors cannot therefore be dealt with under the 1906 Act. Likewise, the Crown is not a public body, so Crown servants cannot be dealt with under the 1889 Act.
Where a company is being prosecuted, in order for the acts to be considered those of the company, the person or persons who stand accused of the acts should hold a position of sufficient responsibility in order to be identified as controlling officers, refer to corporate liability section in Offences committed by companies, elsewhere in the guidance.
Procedure
Mode of trial
Offences contrary to section 1 of the 1889 Act and section 1 of the 1906 Act are triable either way. The common law offence of bribery is triable only on indictment.
Overseas bribery: Responsibilities of investigating and prosecuting authorities
The Serious Fraud Office (SFO) acts as the focal point for receiving any allegations of corruption offences by UK nationals or incorporated bodies overseas and has undertaken responsibility for the initial review of all allegations received in this area. The City of London Police has an Overseas Anti-corruption Unit (OACU) with the specific function of supporting overseas corruption investigations undertaken by SFO.
CPS prosecutors need to be alive to possible cases that involve an allegation of overseas corruption and to the role played by the SFO. It may be necessary in such cases to discuss initially with Policy Directorate or the Fraud Prosecution Service as to whether the case needs to be referred to the SFO. A Memorandum of Understanding on implementing Part 12 of the Anti-terrorism, Crime and Security Act (2001) is in place to which prosecuting and investigating authorities are party.
In the event that the CPS decides to review a file for a possible prosecution then a very careful consideration of the Code for Crown Prosecutors will be essential and prosecutors must ensure that they are not influenced in the negative by "considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved." (NB: Article 5 of the OECD Convention on the Bribery of Foreign Public Officials in International Business Transactions, to which the UK is party, specifically prohibits such considerations.)
Relevant background
Possible future developments in corruption law
In March 2003 the Government, in an attempt to consolidate and clarify the law on bribery, published a draft Corruption Bill for pre-legislative scrutiny, based on a scheme put forward by the Law Commission. The Bill was subject to severe criticism and has not been introduced to Parliament. The Law Commission has been tasked to produce a new draft which will be published in due course.
The leading international instruments on bribery and corruption
The UK is party to a number of international anti-corruption instruments, some of which have entailed changes to legislation. The amount of instruments covering corruption underlines the importance of the subject internationally.
The most prominent instruments on corruption to which the UK is party are below:
The OECD Convention on combating bribery of foreign public officials in international business transactions and revised recommendation (1997)
The Convention obliges Parties to make it a crime to bribe foreign public officials in international business transactions which should be punishable by effective, proportionate and dissuasive criminal penalties. The Convention commits Parties to interpret territorial jurisdiction in as broad a manner as possible and to establish nationality jurisdiction if this is in accord with their legal system. Parties are obliged to establish corporate liability and to facilitate mutual legal assistance.
Council of Europe Criminal Law Convention on corruption (1998) and additional protocol (2005)
The Convention requires states to establish as criminal offences active and passive bribery of domestic and foreign officials. It also covers private sector corruption, trading in influence, money laundering and accounting offences connected with corruption offences. The Convention includes provisions on corporate liability, accounting offences and mutual legal assistance. The Protocol covers bribery of domestic and foreign arbitrators and jurors.
The UN Convention against corruption (2003)
In its eight Chapters and 71 Articles, the Convention obliges State Parties to implement a wide and detailed range of anti-corruption measures affecting their laws, institutions and practices. These measures aim to promote the prevention, detection and punishing of corruption, as well as cooperation between State Parties.
EU instruments against corruption
There are two EU instruments on corruption: A Convention on the Fight against Corruption involving Officials of the Member States of the EU (1997), and a Framework Decision on Corruption in the Private Sector (2003). The latter requires the criminalisation of both active and passive corruption (giving and receiving a bribe), and stipulates that legal persons may be held accountable.
Useful references
Archbold 31-131
Archbold 31-134
R v Naci Vedat Natji, 2002 EWCA Crim 271
Cooper v Slade 1851
Consents to Prosecute, elsewhere in the guidance
Archbold 31-141
Archbold 31-149
Archbold 31-129
Archbold 25-381
R v. Whitaker [1914] 3 K.B. 1283
R. v. Gurney (1867) 10 Cox 550
R. v. Harrison (1800) 1 East P.C.382
R. v. Vaughan (1769) 4 Burr 2494
R. v. Pollman (1809) 2 Camp 229n
R. v. Garner, 10 Cr. App. R. (S.) 445, CA
Woodward v. Maltby [1959] VR 794
Anti-Terrorism, Crime and Security Act (ATCSA) 2001
www.hmso.gov.uk/acts/acts2001/20010024.htm
Contempt of Court, elsewhere in the guidance
Perverting the course of justice, elsewhere in the guidance
Offences committed by companies, elsewhere in the guidance
R v Bush [2003] 2 Cr App R (S) 117
R v Donald [1997] 2 Cr App R (S) 272