Select Committee on Public Administration Second Report


Annex: advice to the Committee from Christopher Sallon QC


In the Matter of the Law of Corruption

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ADVICE

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1.  I am asked to advise the Public Administration Select Committee "the Committee" which is currently considering issues of Propriety and Ethics in Public Life in the context of the recent "Cash for Honours" scandal. In particular, I am asked to consider:

1.1  Whether the current law prohibiting the sale of honours is framed in a way which makes it extremely difficult to bring about successful prosecutions?

1.2  Whether the sale of honours is theoretically caught by the wider law of corruption?

1.3  In the light of the above, whether the law of corruption needs to be reformed?

1.4  Whether, by ordinary legal means (i.e. ignoring any inherent parliamentary power or procedure) the Committee can gain access to papers and information in the police's possession as a result of their recent inquiry?

2.  In summary, my advice is that:

2.1  The law prohibiting the sale of honours creates evidential difficulties, and is therefore difficult to apply. In particular, it is difficult for prosecutors to prove the existence of an agreement to provide an honour in exchange for a reward.

2.2  Whilst the sale of honours is theoretically caught by some aspects of the wider law of corruption, none of the common law or statutory offences offers a precise fit for the facts of the "Cash for Honours" controversy.

2.3  Reform and rationalisation of the laws of corruption are required. However, there remains the risk that such reforms will be unlikely to overcome the evidential and practical problems that face prosecutions of high-profile, political scandals.

2.4  Any attempt by the Committee to gain access to papers and information held by the police by ordinary legal means is unlikely to be successful.

3.  My reasoning appears in the body of this Advice below.

A) Factual Background

4.  On 5 May 2005, the Labour Party won a general election. It is widely agreed that the election campaign involved a high level of expenditure by the main political parties. About a month later, Downing Street officials began work on the preparation of a list of suitable candidates for nomination as Labour working peers.

5.  Throughout the summer of 2005, Downing Street officials prepared a series of drafts of a list of suitable candidates for nomination as Labour working peers.[154] The final list (which included candidates proposed by other political parties) was sent for scrutiny to the House of Lords Appointments Commission "HoLAC" in early October 2005.[155]

6.  Shortly afterwards, reports began to appear in the press that some of the

7.  Labour Party nominees had made "secret" loans to the Party, which had not been disclosed to HoLAC[156]. On or around 20 March 2006, the Labour Party published the names of the individuals from whom the Party had received loans[157]. The individuals included four of the nominees who appeared on the list submitted to HoLAC.

8.  The official investigation into "Cash for Honours" commenced in March 2006, following a complaint made by the Scottish National Party MP, Mr Angus McNeil, that laws regarding the sale of honours had been broken by the Labour party giving peerages in return for donations and loans. The investigation was carried out by a team of the Metropolitan Police led by Assistant Commissioner John Yates.

9.  On 13th April 2006, Mr Des Smith, who until January 2006 had been an adviser to the body that finds wealthy sponsors for the government's city academies program, was arrested. Reports allege that he had suggested that backers of a flagship Labour schools policy could expect to be rewarded with honours. On 12th July 2006, Lord Levy was arrested for the first time. He was later re-interviewed and re-bailed without charge. On 20th September 2006, Sir Christopher Evans, a businessman who had made a £1m loan to Labour, became the third person to be arrested. He was bailed without charge, and insisted that he was innocent. Over the following months, the police arrested and/or interviewed a series of senior politicians and political aides, including former prime minister Mr Tony Blair on two separate occasions.

10.  The Crown Prosecution Service ["CPS"] assisted the police with their enquiries from the beginning of the investigation. Following a series of discussions with the CPS, the police submitted their final submission of evidence on 2 July 2007[158].

11.  In February 2007, the CPS announced that Mr Smith would not face charges. On 20th July 2007, the CPS confirmed that it had insufficient evidence to charge anyone in the case.[159]

B) The Current Law on the Sale of Honours

i) Honours (Prevention of Abuses) Act 1925

12.  Section 1 of the 1925 Act creates the following two offences:

(1) If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of an offence.

(2) If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of an offence.

13.  The penalties under the 1925 Act are imprisonment for a term not exceeding two years, or an unlimited fine, or both.

14.  In R v Braithwaite [1983] 2 All ER 87, [1983] 1 WLR 385, the Court of Appeal considered the meaning of "valuable consideration" for the purposes of s.1 of the Prevention of Corruption Act 1906. At 92, Lord Lane CJ held that the "classic definition" in Currie v Misa (1875) LR 10 Exch 153 at 162 should be applied:

"A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other … "

15.  It follows that a loan is likely to fall into the category of "any gift, money or valuable consideration" for the purposes of s.1 of the 1925 Act. As a short-term transfer of money, a loan could be considered as "money" (which is undefined in the 1925 Act). It is also likely to fall into the category of "valuable consideration", as the person making the loan forbears from re-paying his money for a period of time, and suffers a short-term detriment of loss. The person receiving the loan gains a short-term right, interest or benefit from it. It is my opinion therefore that the 1925 Act is sufficiently flexible to cover the receipt of gifts, cash, or the making of a loan.

16.  As the CPS made clear in their final decision, at paragraph 23, in order to establish liability under the 1925 Act, it would be necessary for the police to show either that:

16.1  an offer of a loan in exchange for an honour, was either made or sought by one person to or from another, even if that other person subsequently refused either to accept or to make such an offer; or,

16.2  one person agreed with another to make/accept a loan in exchange for an honour. The loan must have been made or accepted as an inducement or reward for the honour. The use of the term "consideration" implies that a bargain must have been struck.

17.  This places a high evidential burden on the prosecution, who will, in practice, have to prove the terms of deals that are made in respect of loans. There must be an agreement between the parties. Merely hoping to receive an honour in exchange for making a loan is not enough to constitute an offence. Even where one individual 'A' decides to award an honour to another 'B', and when doing so, takes into consideration the fact that B made a loan, this is still not enough to constitute an offence. The link between the offer of the loan and the award of an honour must be explicit.

18.  It is clear that it is difficult to prove these ingredients to the requisite criminal standard, especially in the absence of any direct evidence of an offer of a loan being made or solicited in exchange for an honour. Strong, circumstantial evidence will therefore be required for a successful prosecution, suggesting that the terms of any loan offer or agreement were kept hidden or secret, suggesting that the people making or receiving a loan discussed the receipt of honours or suggesting a large overlap in timing between individuals making loans and receiving honours. Even if the police can find such evidence, they will still need to effectively discount any credible, innocent explanation for loans being made (for example, an act of personal generosity, or a purely politically motivated act, or for honours being awarded where say, the individual in question was a credible candidate for an honour, regardless of the fact that he or she had made a financial contribution to a political party).

19.  Finally, under the Code for Crown Prosecutors, the CPS will then need to consider how reliable the evidence is, whether all the evidence can be relied on at court and whether there are concerns over the accuracy or credibility of any witnesses, in order to have a realistic prospect of conviction. I believe this is currently expressed in percentage terms as over 50%.

ii) Political Parties, Elections and Referendums Act 2000

20.  The 2000 Act formed a part of the constitutional reform programme implemented by the 1997 Labour Government, and it largely followed the recommendations of the Neill Committee on Standards in Public Life[160]. It introduced a series of controls on political party registration and finances.

21.  Part IV of the Act makes provisions for the control of donations to registered parties and their members. At the material times, s.50(2) defined "donation" in relation to a registered party for the purposes of Part IV of the 2000 Act as:

(a) any gift to the party of money or other property;

(b) any sponsorship provided in relation to the party (as defined by section 51);

(c) any subscription or other fee paid for affiliation to, or membership of, the party;

(d) any money spent (otherwise than by or on behalf of the party) in paying any expenses incurred directly or indirectly by the party;

(e) any money lent to the party otherwise than on commercial terms.

22.  It is clear therefore, that any loan which could properly be characterised as commercial falls outside the scope of the 2000 Act. In order for the police to establish liability under the 2000 Act in respect of any individual involved in the "Cash for Honours" investigation, they would need effectively to exclude the possibility that any loans that were made had been made, in fact, on commercial terms.

23.  Section 50(2)(e) of the 2000 Act has since been repealed by the Electoral Administration Act 2006, s.74, Schedule 1, Part 7, paras 138 144(1), (2), and Schedule 2. This removes the loop-hole which brought the loans in the "Cash for Honours" investigation outside of the scope of the 2000 Act.

C) Additional Laws of Corruption

i) Bribery at Common Law

24.  Where a person in the position of trustee to perform a public duty takes a bribe to act corruptly in discharging that duty, it is an offence in both parties.[161] The offer of a bribe is an attempt to bribe, and is also an offence[162]. The purchase and sale of public offices is regarded by the common law as bribery.[163] The offence of bribery is punishable by fine and/or imprisonment, whether the bribe is accepted or not.[164]

25.  For the purposes of common law bribery, a "public officer" is defined as "an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public".[165] It therefore only arguable that any approach to an official carrying out a role in the government, such as party political aides like Lord Levy and Ms Ruth Turner, would be covered by this offence. In Lord Levy's case, it is unclear if he was an official civil servant, or even if he was paid for his role. An approach to these individuals could only constitute common law bribery if it could be clearly shown that they were public officials.

26.  A bribe has been defined as an "undue reward"[166]. It could be argued that a loan could constitute such a reward, albeit a reward that is only enjoyed in the short-term.

27.  It should, however, be noted that, under the present law, the offence is limited to the acceptance of a bribe or reward. Many prosecutions therefore fail, because whilst there may be evidence that the public official carried out an act of favour, there is no evidence that a bribe or reward was actually agreed.

ii) Public Bodies Corrupt Practices Act 1889

28.  Section 1 of the 1889 Act, provides:

(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 an offence.

(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 an offence.

29.  The penalties under the 1889 Act are extensive. They include imprisonment or a fine (or both), as well as an order to the defendant to pay to a public body the amount, or value of the gift, loan, fee or reward received. Under s.2, the Court may also disqualify the Defendant from public office or order his or her forfeiture of office.

30.  The bribe must take the form of "a gift, loan, fee, reward, or advantage". It follows that the receipt of a loan is explicitly covered by the 1889 Act. However, under the 1889 Act, the "advantage" paid must be connected to a particular "matter or transaction". While the definition of "any matter or transaction" is wide enough to include the grant of an honour, the requirement for the "advantage" to be made or solicited as an inducement for this particular "matter or transaction" gives rise to the same problem I have already identified in relation to the 1925 Act (see paragraph 15.2 above), namely that it is necessary to prove that the individuals in question entered into an agreement.

31.  The 1889 Act sets no limits on the category of persons who may be charged with soliciting or receiving a bribe. It includes in section 7, not only a member, officer or servant of a public body but also any third party who solicits or receives a bribe in respect of the conduct of a member, officer or servant of a public body. This provision might at first blush be thought to be particularly useful for any investigation into "Cash for Honours", since it covers not only public representatives, but also the aides and agents who represent them. However, it appears from section 7 of the 1889 Act that neither House of Parliament is a public body for the purposes of the Act. Rather, the definition of "public body" appears to be focussed on local government bodies. As a result, it is unlikely that the sale of honours is caught by the 1889 Act.

iii) Prevention of Corruption Act 1906

32.  Section 1(1) provides in part:

"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

… he shall be guilty of a misdemeanour."

33.  The penalties under the 1906 Act are imprisonment or a fine or both.

34.  The 1906 Act applies to all "agents", whether in the public or the private sector. "Agent" is defined at sections 1(2) and (3) as including "any person employed by or acting for another" and "a person serving under the Crown" or for "any local or public authority". The traditional approach to this legislation, however, is that a Member of Parliament is not an agent for the purposes of the 1906 Act. It is therefore unclear, if someone acting on behalf of a Member of Parliament could fall into the definition of an "agent" for the purpose of this Act. In determining whether a person is "serving under the Crown" however, the question is not whether he is employed by the Crown but whether the duties he performs are performed by him on behalf of the Crown[167]. Therefore, while civil servants are likely to fall into this definition, it is unlikely that party political aides would.

35.  The definition of the "bribe" in the 1906 Act is closer to that in the 1925 Act that that in the 1889 Act. It uses the expression "gift or consideration"; and "consideration" is defined as including "valuable consideration of any kind". Therefore, as above, it is submitted that the receipt of a loan could fall into this definition.

36.  As under the 1889 Act and the 1925 Act, the "bribe" must be given or received as a "reward" or "inducement". However, under the 1906 Act, there is no requirement to link the "bribe" to an individual act on the part of the agent, as generally more favourable treatment will suffice. Once again, this requirement of a link between the "bribe" and any more favourable treatment raises the difficulty of proving the fact that the parties entered into a corrupt agreement.

iv) Prevention of Corruption Act 1916

37.  Section 2 of the 1916 Act introduced the "presumption of corruption" into law. It provides:

"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 [Her] 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 [Her] 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."

38.  The onus of proof lies upon the defendant and the jury should be directed that it may be discharged by evidence satisfying the jury of the probability of that which the defendant is called upon to establish.[168]

39.  As section 2 makes clear, the "presumption of corruption" only applies to the employees of government departments, as defined, and not to members of such bodies (such as local councillors or Members of Parliament). It is therefore unclear if this definition will include party political aides or advisors, especially where such persons hold only voluntary positions.

40.  The second problem is that the 1916 Act applies only to the issue of obtaining contracts, and not to appointments to public bodies, such as the award of peerages or the award of a lesser honour. As a result, though the "presumption of corruption" provides a useful aide to proving the existence of an agreement, it is unlikely that it would apply to the facts of the "Cash for Honours" controversy.

v) Misconduct in the Public Office

41.  The ingredients of the common law offence of misfeasance in the public office were set out by the Court of Appeal in Att-General's Reference (No. 3 of 2003) [2004] 2 Cr.App.R. 23, CA. At paragraph 61, Pill LJ, giving the judgment for the Court, stated that an offence is committed when:

41.1  a public officer acting as such;  

41.2  wilfully neglects to perform his duty and/or wilfully misconducts himself;

41.3  to such a degree as to amount to an abuse of the public's trust in the office holder;

41.4  without reasonable excuse or justification.

42.  The receipt of a bribe constitutes misconduct in the public office.[169] It follows that the receipt of a loan from an individual on the understanding that that individual would be rewarded with an honour is likely to fall into the scope of this offence.

43.  As above, the requirement that the misconduct is carried out by a "public officer acting as such" raises a difficulty in the context of the "Cash for Honours" investigation. Many of the individuals who were allegedly involved were party political aides, and so, may not be considered as "public officers".

D) Difficulties of Prosecution

44.  Whether as a result of the legal and evidential difficulties referred to above, or for other reasons, statistics suggest an historical lack of enthusiasm in prosecuting offences of corruption.

45.  On average, 21 people were prosecuted in each year between 1993 and 2003 under the Prevention of Corruption Acts referred to above. By comparison on average, some 23,000 defendants were prosecuted each year for fraud between 1997 and 2001[170]. Though these figures may not be entirely accurate, it is clear that there is a considerable difference between those prosecuted for public sector corruption and those prosecuted for private sector fraud.

46.  It is also likely that the police and the CPS adopt a pragmatic approach to prosecuting political representatives. Though corruption in Parliament has not wholly escaped punishment in the past, with MPs having been punished by expulsion for accepting bribes since at least 1667[171], it is difficult to point to a successful prosecution of a high-profile political figure in recent years.

47.  One of the few examples of an attempted prosecution of a politician in modern times bears witness to this pragmatic approach. In 1992, an attempt was made to prosecute a Member of Parliament for common law bribery, as he had allegedly accepted bribes from a company in his constituency "to show such favour as might be within his power as a member of Parliament" to the company and its directors in relation to their business and contracts with British Rail. Though the judge ruled that MPs were subject to the common law offence[172], the case never came to a full trial as the Crown later offered no evidence against the MP.

48.  Though the Joint Committee on the Draft Corruption Bill concluded[173], that it had "received little evidence that any MPs and peers have avoided prosecution for corruption either because of their status or because parliamentary proceedings cannot be questioned in court", it is difficult to avoid a suspicion that a pragmatic approach has been taken to the prosecution of members of the Executive. This is illustrated by press reports about the interview of Tony Blair in relation the "Cash for Honours" investigation. On 25th June 2007 Channel 4 news reported that the police had originally asked Mr Blair for an interview under caution, but that Mr Blair said that this would require him to resign as Prime Minister. The police then allegedly re-considered and interviewed him as a witness, rather than as a suspect.[174]

E) Is Reform Necessary?

49.  As the above analysis makes clear, the failure to bring successful prosecutions due to the "Cash for Honours" controversy only offers further evidence of the need for a modern, rationalised corruption law. Having considered the current law in the light of the facts of this investigation, I have seen nothing to suggest that the Salmon Committee on Standards of Conduct in Public Life, the Law Commission and the Joint Committee on the Draft Corruption Bill were incorrect in their conclusions that wholesale reform of the law of corruption is necessary[175].

50.  In particular, the present law of corruption is drawn from a bewildering array of sources, including overlapping common law offences and at least 11 statutes[176]. Whilst the "Cash for Honours" allegations potentially fall into the scope of some of these offences, none of them provides a precise fit and there are evidential and practical difficulties with all of them. Each offence applies to different groups of people. Each offence uses differing definitions of what constitutes a "bribe". Each offence applies different penalties. It is therefore clear that rationalisation of the current law would be helpful.

51.  In 1998 the Law Commission published a report and draft Bill which recommended the creation of four new offences to replace those in the Prevention of Corruption Acts 1889-1916[177]. In 2000 the Government consulted on the Law Commission's proposals and in 2003 presented a draft Corruption Bill to the Joint Committee on the Draft Corruption Bill for pre-legislative scrutiny. The Joint Committee advised abandoning the Commission's recommendations, proposing an alternative scheme which the Government then rejected. In an attempt to build a new consensus, the Government issued a consultation paper in December 2005. In March 2007 the Government announced that the outcome of the consultation process was that there was broad support for reform of the current law but no consensus as to how it could be best achieved. As a result, the Government has asked the Law Commission to undertake a thorough review of the bribery law of England and Wales.[178] The Law Commission intends to publish an issues paper in November 2007 to be followed by the publication of a final report together with a draft Bill in autumn 2008.

52.  In the light of this long and detailed process of consultation on legislative reform, it should be made clear that the suggestions for reform contained in this advice are framed solely in response to the problems in the current law of corruption arising from the "Cash for Honours" enquiry. This advice does not attempt to reach a comprehensive conclusion on the overall reform of the law of corruption in general, such as may be necessary, for example, to bring the law of England and Wales into line with its obligations under relevant international agreements. Such a conclusion will be provided by the Law Commission in its pending report.

F) Suggestions for Reform

53.  The first recommendation should be a rationalisation of the definition of public body. The differing definitions of "public body" in the relevant statutes and common law offences may have caused problems in the "Cash for Honours" investigation, in which many of those allegedly involved were party political aides, and so, may not have been official civil servants. Moreover, as the controversy caused by the "Cash for Honours" investigation shows, there is little justification for keeping Members of Parliament outside the scope of the laws of corruption[179]. The distinction between public and non-public bodies also causes difficulties outside the "Cash for Honours" investigation, due to uncertainty in the Acts as to what constitutes a public body. Many former public bodies have now been privatised, and it is uncertain which of them, if any, can still be regarded as public bodies for the purpose of the relevant offences.

54.  There are several ways of putting such a reform into effect:

54.1  The definition of "public body" could be rationalised, perhaps by using a definition similar to that in s.6 Human Rights Act 1998. This would bring the actions of all civil servants into the scope of the law of corruption, and provides a useful function-based approach to privatised "public bodies".

54.2  The approach to agents in some of the corruption legislation should be applied throughout. Keeping the focus on a "member, agent or employee" of a public body might ensure that party political aides are not able to escape liability.

54.3  The unnecessary distinction between public bodies and others could be simply abandoned.

55.  The second suggested reform is to clarify the concept of the "bribe" itself. Under the present legislation, the "bribe" is described in many different ways -as a "gift, loan, fee, reward or advantage" (the 1889 Act), as a "gift or consideration" (the 1906 and 1916 Acts) and as any "gift, money or valuable consideration" (the 1925 Act). For the purposes of this advice, it has been presumed that a loan will fall into the wider definition of "money" or "valuable consideration". However, it is still possible for a defendant to advance a technical argument that the receipt of a "loan" falls outside the relevant definitions.

56.  The following amendments could be incorporated into a revised corruption statute:

56.1  The wide definition in the 1889 Act ("gift, loan, fee, reward or advantage") could be adopted.

56.2  Rather than the narrow and specific legal definitions of what in current law constitute a "bribe", a more general term, such as an "advantage" could be used. The approach suggested by the Law Commission is as follows[180]:

"a person should be regarded as conferring an advantage if,

(a) he or she does something or omits to do something which he or she has a right to do, and

(b) the act or omission is done or made in consequence of another's request (express or implied) or with the result (direct or indirect) that another benefits."

57.  The third suggested reform to the law of corruption is to clarify the nature of the act carried out as a result of receiving the "bribe". In the various acts, definitions vary from the precise (the receipt of honours in the 1925 Act) to the wide (more favourable treatment in the 1906 Act). In order to ensure greater consistency, the nature of the act carried out could be defined more broadly, extending perhaps to "performing functions corruptly". The reference to the performing of "functions" may be considered to be sufficiently wide in scope, and has the added advantage of fitting within the definition of a "public body" as set out in s.6(3) of the Human Rights Act 1998.

58.  However, as noted above, the primary problem in establishing any corrupt activity is proving to the requisite standard the intentions of and agreements between the relevant parties. In the "Cash for Honours" investigation, it was clear that some of those who had made significant loans to the Party were subsequently recommended for honours. The primary problem with the potential prosecution of those involved was showing the necessary intention and agreement.

59.  This problem applies to many of the corruption offences set out above, particularly as the offence of corruption is inherently clandestine. Acts of corruption rarely take place in the presence of witnesses and evidence is rarely recorded. Considered in this context, it is difficult to argue with the conclusion of both the Redcliffe-Maud Committee Report and the Salmon Committee Report that the presumption of corruption in the 1916 Act, which shifts the burden of proof to the defendant, should be extended throughout the law of corruption.[181]

60.  Under such a presumption, the prosecution would have to prove to the criminal standard of proof (beyond reasonable doubt):

60.1  that some "money, gift or other consideration" was paid or given to, or received by, a "public body" (as defined above), and

60.2  that the person providing (or the person whose agent provided it) was holding or seeking to obtain an "advantage" (as defined above) from that member.

61.  It would then fall to the defendant to offer an innocent justification, which would only need to be proved to the civil standard (on a balance of probabilities).

62.  However, it is submitted that expanding and strengthening the presumption of corruption would be an infringement of the presumption of innocence, which is guaranteed in Article 6(2) of the European Convention of Human Rights ["ECHR"] and given effect by the provisions of the Human Rights Act 1998. Such a reversal of the burden of proof should be confined within "reasonable limits which take into account … what is at stake and maintain the rights of the defence"[182] and it could only be justified if it relates only to matters which are difficult for the prosecution to prove because they are peculiarly within the defendant's own knowledge; if it only creates a rebuttable presumption of fact and if it is restrictively worded.[183]

63.  It may be possible however to argue that a shift in the presumption of corruption to the defendant is not incompatible with Article 6(2) guarantees:

63.1  Corruption is an elusive crime which cannot be proved without information that is purely within the defendant's own knowledge.[184]

63.2  Empirical evidence as to the level of prosecutions suggests that it is extremely hard for the Crown to adduce sufficient evidence to prove corruption.

63.3  Though the presumption of corruption has been in force since 1916, and (I assume) charges brought since the implementation of the Human Rights Act 1998, it appears that it has not been challenged in the European Court of Human Rights[185].

64.  However, none of these arguments overcomes the fact that private sector corruption, in the form of criminal fraud, is regularly prosecuted without the benefit of the presumption. Considered in this context, corruption is no more or less difficult to investigate than other forms of financial crime[186]. This suggests that the phenomenon of under-prosecution on the part of the police and the CPS might be accounted for by underlying and more sensitive problems than to genuine evidential difficulties. For these reasons, it is my opinion that a more robust presumption of corruption is unlikely to be considered as Human Rights Act compliant.

G) Access to Papers and Information

65.  I am instructed that the Committee seeks to gain access to any papers and information in the police's possession as a result of the recent "Cash for Honours" investigation. Any such request is likely to be considered under the principles in the Freedom of Information Act 2000 ["FOIA 2000"] and in the context of the Data Protection Act 1998 ["DPA 1998"]. Whilst these Acts have provided enhanced accountability from public bodies, they do not provide a guaranteed method of extracting information.

66.  Under s.1 FOIA 2000, any person making a request for information of a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request, and if so, to have that information provided to him. "Information" is defined at s.84 FOIA 2000 as "information recorded in any form". This means that the Committee could request access to any written memoranda, photographs, plans, video and sound recordings and to data held on any computer. An applicant under FOIA 2000 must describe the information which he or she is seeking with sufficient particularity to enable to the public authority receiving the application to be able to identify it.[187]

67.  These rights are not confined to "natural persons", and can also be enforced by bodies enjoying a legal personality, such as public authorities. The fact that the Committee might qualify as a "public authority" for the purposes of the Act[188], does not prevent it from being an applicant under FOIA 2000. Under FOIA 2000, the motives of the person seeking the information are irrelevant.[189] The Committee is therefore likely to be able to request information, either in its own name, or in the names of individual members.

68.  However, any request for information from the Metropolitan Police could be refused under the following exemptions:

68.1  Under s.24(2) FOIA 2000, information can be withheld if this is "required for the purpose of safeguarding national security". It is highly unlikely that this exemption will be relied upon, but it could be used to cover personal details relating to the former Prime Minister.

68.2  Under s.30 FOIA 2000, information held for the purposes of investigation and proceedings can be withheld. This covers any investigation which the police had a duty to conduct with a view to ascertaining whether someone should be charged with an offence and also any investigation which may lead to a decision to institute criminal proceedings. This is the most important exemption for the purposes of any request by the Committee. It covers the police and the CPS, and includes any information held "at any time". It follows that information will be withheld even where an investigation has been concluded.

68.3  Section 31 FOIA 2000 provides an additional exemption for information which is not covered by s.30 but which is nevertheless connected with law enforcement functions. It covers any information of which the disclosure would be likely to prejudice, inter alia, the prevention and detection of crime and the administration of justice.

68.4  Under s.37 FOIA, a public authority is exempt from the duty to communicate information where information relates to communications with Her Majesty, any other member of the Royal Family or with the Royal Household or to the conferring by the Crown of any honour or dignity.

68.5  Under s.42 FOIA 2000, any information covered by legal professional privilege can be withheld. This covers any communications between a client and his legal adviser for the purposes of giving or obtaining legal advice, and is likely to cover any professional legal advice provided by in-house lawyers at the police and CPS, as well as the details of the advice provided to the CPS by a the team of independent counsel, led by David Perry QC, on whether or not individuals could be charged.

69.  These are qualified exemptions under FOIA 2000, and so they are only effective in exempting a public authority from compliance with the duty to provide information where the public interest in maintaining the exclusion of the duty outweighs the public interest in disclosing whether the public authority holds the information.[190] There is undoubted public interest in the "Cash for Honours" controversy, and in the efficiency and effectiveness of the police inquiry into it. Few other issues have provoked such intense speculation in the press and other public forums. However, there is also a strong public interest in the protection of witnesses who have given evidence to police. If information relating to the investigation was disclosed to the Committee, the Metropolitan Police could legitimately claim that such a disclosure would make it extremely difficult for the police to gather information in future. As a result, it is my opinion that the balance of the public interest is likely to come down in favour of the protection of the police sources in this case.

70.  The following, absolute exemptions may also apply:

70.1  Section 23(3) FOIA 2000 exempts the disclosure of any information which was "directly or indirectly supplied to the public authority by" or "relates to" a listed body with a security function. This exemption would cover any intercepted communications or any information provided by the security services.

70.2  Under s.41 FOIA 2000, information can be withheld if its disclosure would constitute an actionable breach of confidence, and it would not be in the public interest to breach this confidence. The Information Commissioner considers that for a breach of confidence to be actionable it must meet the established tests in Coco v Clarke [1969] RPC 41[191]. The requirements are that the information must have the necessary quality of confidence; it must be imparted in circumstances giving rise to an obligation of confidence; and there is an unauthorised use of that information. A duty of confidence can arise when the police photograph a suspect at a police station in circumstances where the suspect's consent was not required. Where such a duty arises the police are not free to make whatever use they liked of the photograph but are under certain obligations to the suspect, the breach of which would be actionable by him at private law.[192] Though this exemption is not limited with reference to the public interest, the Commissioner recognises that where there is an overriding public interest in any particular case in disclosing the information the courts have accepted that no duty of confidence is owed. However, as noted above, there is a strong public interest in protecting the identities of those who give evidence to the police and regulatory bodies.

70.3  Under s.40 FOIA 2000, information can be withheld if it is "personal data". Such information can only be released if allowed under the DPA 1998.

71.  Under s.1 DPA 1998, "personal data" is defined as data which relates to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. It includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual. The first data protection principle requires that personal data shall be processed fairly and lawfully and, in particular, that it shall not be processed unless at least one of the conditions in Schedule 2 (to the DPA) is met. It also requires that, in the case of "sensitive personal data", at least one of the conditions in Schedule 3 to the DPA must also be met (in addition to at least one Schedule 2 condition) before processing can be fair and lawful.

72.  The introductions to police witness statements generally contain the names, ages, occupations and addresses of witnesses. In the statements themselves, witnesses tend to give this same information as well as their interpretations of events and their own observations, opinions and views which were provided in order to assist the police investigation. This is likely to be classed as "personal data" for the purposes of the DPA 1998, and could also be considered as "sensitive personal data".

73.  Processing the "personal data" in accordance with the principles of Schedule 2 DPA 1998 requires, amongst other conditions, considering if the data subject has given his consent to the processing[193], and considering whether the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.[194]

74.  In any police investigation, it is likely that the individuals in question would have had no reasonable expectation that the information would be processed for any purpose other than those related directly to furthering that investigation. Rather, they would expect, reasonably in the circumstances, that it would be held only for that purpose and held in confidence. Any person who provided information to the "Cash for Honours" investigation would therefore have a strong legitimate interest in the information not being disclosed.

75.  It therefore follows that much of the information contained in police witness statements is likely to be considered as personal data for the purposes of the DPA 1998 and that release of the information would be a breach of the data protection principles contained in Schedule 2 to the DPA 1998.

76.  Recent decisions of the Information Commissioner underline my preliminary opinion that a Committee request to the Metropolitan Police is unlikely to have any success. In Public Authority: The Parades Commission, Information Commissioner's Office Decision Notice, 14 Aug 2007, Case Ref: FS50146463, the Commissioner emphasised again, at paragraph 29, the importance of the public interest in protecting the identities of those who give evidence to regulatory bodies.

77.  These concerns are also well illustrated by the recent decision of the Scottish Information Commissioner in David Leslie and the Chief Constable of Northern Constabulary[195]. Mr Leslie, a journalist, had emailed Northern Constabulary requesting all documents, reports and relevant material concerning any investigations by Northern Constabulary into the death in April 1985 of Mr William MacRae. In response, Northern Constabulary did not disclose the following:

77.1  A book of photographs of deceased;

77.2  A list of thirty four witnesses and thirty two witness statements;

77.3  The Post Mortem report;

77.4  Newspaper cuttings;

77.5  Six documents relating to the investigation.

78.  Following an investigation, the Scottish Information Commissioner found that generally Northern Constabulary had dealt with Mr Leslie's request for information in line with Part 1 of the Freedom of Information (Scotland) Act. Even though there had been intense speculation in the press and other public forums about how Mr MacRae died and there was a public interest in providing accountability in relation to the efficiency and effectiveness of the Force or its officers, the Scottish Information Commissioner still held that the public interest was not best served by placing the information into the public domain.

79.  In assessing the public interest, he took into consideration the likely upset that the release of the information would have on the deceased's family, the fact that the interests of third parties that assisted the police in the investigation might be compromised by disclosure, and that disclosure could make it more difficult for the police to gather information in future. The Scottish Information Commissioner also considered that to release untested, verbatim witness statements into the public domain was likely to be unfair to those to whom the statements relate as it risked provoking a form of summary justice.

80.  It follows that it is highly unlikely that a request under FOIA 2000 for information relating to the investigation into the "Cash for Honours" controversy will have any success.

H) Conclusion

81.  For the reasons set out above, it is my initial impression that the "Cash for Honours" investigation provides further evidence of the need to reform the law of corruption.

82.  However, even with the necessary reforms in place, it may not be possible to overcome the evidential problems that prosecutors face when dealing with clandestine offences of this kind, or the pragmatic approach to prosecuting high-profile, political personalities.

83.  It should also be noted that previous attempts to correct and clarify the law in this area in response to public scandal has resulted in confusion and inconsistencies. .[196] In order to avoid such problems arising again, a more suitable response might be a structural reform of the legislation as it currently stands, rather than seeking to extend still further the scope of the criminal law.

84.  I hope that the Committee will not hesitate to contact me should further advice or assistance be required.


CHRISTOPHER SALLON QC 27th September 2007

Doughty Street Chambers

10-11 Doughty Street

London WC1N 2PN





154   CPS decision, 20th July 2007, paragraph 7. Back

155   "Lords nominees are blocked in Labour loan row", Times, 10 March 2006 Back

156   "Cronyism inquiry holds up new peers", Daily Telegraph, 27 December 2005 Back

157   "Labour reveals secret loans list", BBC, 20th March 2006  Back

158   CPS decision, 20th July 2007, paragraph 3. Back

159   'CPS Statement in Full', Guardian, 20th July 2007 Back

160   Fifth Report of the Committee on Standard in Public Life, Cm 4057, 1998 Back

161   Archbold 2007, at 31-129.R v Whitaker [1914] 3 KB 1283 Back

162   R v Vaughan (1769) 4 Burr. 2494 Back

163   R v Pollman (1809) 2 Camp 229n Back

164   Archbold (2007) at 31-129 Back

165   Whitaker [1914] 3 KB 1283, per Lawrence J at pp 1296-7 Back

166   Russell on Crime (12th Edition 1964), at p381 Back

167   R v Barrett, 63 Cr.App.R. 174, CA Back

168   R v Carr-Briant [1943] KB 607 Back

169   Llewellyn-Jones [1968] 1 QB 429 Back

170   Report of the Joint Committee on The Draft Corruption Bill, 17 July 2003, at para 11. Back

171   See Oliver & Drewry, 'Parliament and the Law relating to Parliamentary Standards' in in O. Gay and P. Leopold (eds), Conduct Unbecoming: The Regulation of Parliamentary Behaviour, (Politico's Publishing, London), pp. 181-212. Back

172   R v Greenway and others, Central Criminal Court, 25th June 1992 (unreported).See the discussion in Public Law, Autumn 1998, at p.356 Back

173   Report of the Joint Committee on The Draft Corruption Bill, 17 July 2003, at para 105. Back

174   "The times Blair nearly resigned", Channel 4, 26th June 2007 Back

175   See the Report of the Salmon Commission on Standards of Conduct in Public Life, at para 87, and the report of the Nolan Committee on Standards in Public Life, at para 2.104, the Report of the Joint Committee on the Draft Corruption Bill at paragraph 13 and the Law Commission Report No 248, at paragraph 2.33 Back

176   See Legislating the Criminal Code: Corruption (1998) Law Com No 248, at paragraph 1.2.As well as the offences set out above, see also Sale of Offices Act 1551; Sale of Offices Act 1809; Licensing Act 1964, s 178; Criminal Law Act 1967, s 5; Local Government Act 1972, s 117(2); Customs and Excise Management Act 1979, s 15; Representation of the People Act 1983, ss 107, 109 and 111-115. Back

177   Legislating the Criminal Code: Corruption (1998) Law Com No 248. Back

178   Hansard, 5 Mar 2007 : Column 116WS Back

179   See also the Home Office discussion paper, Clarification of the law relating to the Bribery of Members of Parliament, December 1996. Back

180   Legislating the Criminal Code: Corruption (1998) Law Com No 248, at paragraph 5.43 Back

181   Redcliffe-Maud Report, at para 161; Salmon Report at para 61 Back

182   Salabiaku v France (1988) 13 EHRR 379.See also the comments of Lord Woolf in Attorney General of Hong Kong v Lee Kwong-Kut [1993] AC 951 Back

183   X v United Kingdom, App 5124/71, (1972) 42 Collection of Decisions 135. Back

184   Legislating the Criminal Code: Corruption (1998) Law Com No 248, at paragraph 4.28 Back

185   Legislating the Criminal Code: Corruption (1998) Law Com No 248, at paragraph 4.29.Although this could be the result of the dearth of successful prosecutions rather than to a lack of merit in the argument. Back

186   This was the view of the General Council of the Bar, the Criminal Bar Association and the SFO in their submissions to the Law Commission.Legislating the Criminal Code: Corruption (1998) Law Com No 248, at paragraph 4.71. Back

187   ss.1(3) and 8 FOIA 2000 Back

188   See s.3, schedule 1 and schedule 5, FOIA 2000 Back

189   Hansard, House of Lords, 17 October 2000 Back

190   s.2(1)(b) FOIA 2000 Back

191   Public Authority: The Parades Commission, Information Commissioner's Office Decision Notice, 14 Aug 2007, Case Ref: FS50146463, at paragraph 25 Back

192   Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473, per Laws J. at p.478 h j, p.479 b d f and p.480 Back

193   Paragraph 1, Schedule 2, DPA 1998 Back

194   Paragraph 6, Schedule 2, DPA 1998 Back

195   Scottish Information Commissioner Decision, 27 August 2007, Decision No. 155/2007 Back

196   As noted by the Law Commission at paragraph 1.2 of Legislating the Criminal Code: Corruption (1998) Law Com No 248. The 1889 Act was introduced following revelations of malpractice made before a Royal Commission appointed to inquire into the affairs of the Metropolitan Board of Works.The 1916 Act was prompted by wartime scandals involving contracts with the War Office, and was passed rapidly through Parliament as an emergency measure. Back


 
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