Select Committee on International Development Minutes of Evidence



The Government's Proposals for the Reform of the Criminal Law of Corruption in England and Wales



  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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