Defence for certain bribery offences: legitimate purposes

122.     Clause 13 of the Bill provides for a defence to certain bribery offences where it can be shown that the conduct which would amount to an offence was necessary for:

• the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ, or

• the proper exercise of any function of the armed forces when engaged on active service.

123.     As with the defence relating to commercial organisations (clause 7) the legal burden to prove the conduct was necessary shifts to the defence once it is established that an offence has been committed. The Government considers that placing the legal burden on the defendant to establish the defence, in the particular circumstances, is compatible with Article 6(2) of the Convention.

124.     The overall burden of establishing guilt remains with the prosecution. The standard of proof which the defence will need to discharge will be on the balance of probabilities. The aim of the defence is to absolve those who perform functions for or on behalf of State bodies from committing offences where it is necessary for them to perform conduct in the course of their functions which may amount to bribery. Those circumstances are expressly limited to cases where there is a compelling need. In addition, showing necessity in the circumstances is something that would be peculiarly within the knowledge of the individual pleading the defence. In any event, it would be very difficult to place the legal burden on the prosecution to establish the contrary, particularly in the circumstances in which it is possible that the circumstances of the defence may be satisfied.

Repeal of the existing law

125.     The Government observes that the fact that the existing law of bribery is being repealed arguably has the effect of enhancing human rights.

126.     Section 2 of the Prevention of Corruption Act 1906 introduced a presumption of corruption in certain cases involving corruption within the public sector. It applies where it is proved in any prosecution under the Public Bodies Corrupt Practices Act 1889 or the Prevention of Corruption Act 1906 that any consideration was paid to, given or received by an employee of the Crown, any Government Department or public body by another person (or their agent) seeking to obtain a contract from the Crown. The effect of section 2 is to place the burden of proof onto the defendant to prove on the balance of probabilities, that the relevant payment was not given or received corruptly. This means that the defendant bears the legal burden for disproving the ‘corruptly’ element of the offence in the specific circumstances covered by section 2.

127.     Concerns have been raised in the past over whether the presumption in section 2 is compatible with Article 6(2). The Law Commission expressed concern around this issue in 1998 (albeit they did not reach a firm conclusion that the provision was not compatible - paragraph 4.77 of Legislating the Criminal Code: Corruption, Report No. 248). The Government’s 2005 paper Bribery - Reform of the Prevention of Corruption Acts and SFO Powers in Cases of Bribery of Foreign Officials highlighted the point and pointed out that “the CPS have concluded that the risk of ECHR challenge is so great that they do not in practice rely on the presumption”.

128.     The provisions in the Bill will repeal the presumption in section 2 and therefore any possible doubts around the compatibility of the existing law in respect of section 2 will be removed.

COMMENCEMENT

129.     As provided by clause 19, clauses 16, 17(4) to (10), 18, 19(1) to (4) and 20 come into force on the day the Bill is passed. The remainder of the clauses come into force by order of the Secretary of State.