ATTACHMENT 3
RAISING STANDARDS AND UPHOLDING INTEGRITY:
THE PREVENTION OF CORRUPTION
The Government's Proposals for the Reform
of the Criminal Law of Corruption in England and Wales
SUPPLEMENTAL COMMENTS OF TRANSPARENCY INTERNATIONAL
(UK)
JURISDICTION—TERRITORIAL
AND NATIONALITY
BASED
1. TI-UK warmly welcomes the Government's
proposal to accept the Law Commission's recommendations to include
the new corruption offences within Part I of the Criminal Justice
Act 1993, or otherwise by way of the proposed legislation, to
place beyond doubt the UK's ability to prosecute offences where
part only of the offence occurs within the UK. Please refer to
paragraph 2.6 of the TI-UK July 2000 submissions document, when
distinguishing between the laws of the UK and those of England
and Wales.
2. TI-UK also warmly welcomes and strongly
supports the Government's view (para 2.23 of the Paper) that the
UK should assume jurisdiction over its nationals for offences
of corruption committed abroad. TI-UK would feel able to express
this view more strongly than it appears in the Paper, because
in TI-UK's view, it is the only way to make the criminalisation
of bribery of foreign public officials (FPOs) effective.
3. The principal reasons for this are well
summarised in the Paper (para 2.23) and stated by the Rt Hon Jack
Straw in his foreword to the Paper. For convenience, these are
set out below:
— Corruption knows no boundaries
— It is sometimes difficult to pin
down the physical location at which a corrupt transaction has
taken place
— The law has to catch up with the
realities of modern technology in business
— Without this change, acts of corruption
committed by UK nationals or UK companies wholly outside the jurisdiction
(ie the normal practice for bribes to FPOs) would not be covered
— The UK's willingness to extradite
its nationals is not an answer, because states where extortion
and bribery are common will seldom prosecute and the unlikelihood
of a fair trial and the risk of inhuman punishments would preclude
extradition
— To assume nationality jurisdiction
sends a strong deterrent message that the UK is determined to
act against corruption, backs up existing codes of conduct and
puts beyond doubt the UK's commitment to join forces with the
international community in the fight against corruption.
4. The preamble of the OECD Convention states
that international bribery raises serious moral and political
concerns, undermines good governance and economic development
and distorts international competitive conditions. These concerns
merit the Government's taking nationality-based jurisdiction.
Nothing less will render UK jurisdiction effective for
the purpose of Article 4(4) of the Convention, which required
the United Kingdom to "review whether its current basis for
jurisdiction is effective in the fight against the bribery of
FPOs, and, if it is not, to take remedial steps."
5. The concept on which territorial jurisdiction
is founded is that UK law is intended to preserve "the Queen's
peace". The notion that law and order can be breached only
by activity within the territory of a state is no longer sustainable.
Immense political and economic damage flows from international
corruption. The offence merits at least equal consideration with
homicide, drug trafficking, terrorism and sex tourism, for which
extra-territorial jurisdiction is taken. The same principles
should be applied in relation to corruption offences, in accordance
with Article 4(2) of the OECD Convention. Nationality jurisdiction
is required for the UK to be fully compliant with the Convention
and is entirely consistent with the position adopted in regard
to other serious international crime.
6. It is understood that civil law states
generally feel less constrained than the UK and other common law
states in prosecuting their nationals for offences committed abroad.
It should be noted that the USA have taken the view that they
needed to assume nationality jurisdiction in order to be compliant
with the OECD Convention and their Foreign Corrupt Practice Act
was amended accordingly in 1998. Australia has also adopted full
nationality jurisdiction. The purpose of the Convention will not
be achieved unless the UK also assumes jurisdiction based on nationality
for this offence.
7. Both territorial and nationality jurisdiction
are required. Even under Part I of the Criminal Justice Act 1993,
there has to be one component act of the offence committed within
the jurisdiction. The reality is that in significant cases of
bribery of FPOs, very great care will be taken that no action
occurs in the UK. There may be evidence of payment of a bribe
to or for the benefit of a FPO, the potential economic benefit
of which would pass back to a company based in the UK. However,
there may be no evidence of any act in the UK and no prosecution
could, therefore, be brought.
8. As with the July 2000 submissions document,
TI-UK is willing to discuss any of these issues with the Home
Office or other Government departments if this would be helpful.
21 August 2000
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