Memorandum from Khawar Qureshi (DCB 7)
1. Further to a letter dated 27 March 2003,
I am providing in outline form hereinbelow my observations on
The extent to which the draft Bill
("the Bill") meets the UK's international obligations;
How the new law will compare with
the law in other comparable jurisdictions
2. I note from the Foreword to the Bill
that the Government has identified the international sphere in
the context of corruption as comprising, inter alia, the following
The Council of Europe Civil Law Convention
on Corruption dated 4 November 1999 ("the Civil Convention").
The Bill is intended to enable ratification of that instrument
to take place.
The Council of Europe Criminal Law
Convention on Corruption of 1998 ("the Criminal Convention").
It is intended that ratification of this Convention will take
place "in the near future".
The Draft UN Convention on Corruption
(present working draft dated January 2003) ("The UN Draft
Convention"). The United Nations envisages that this instrument
will be available for signing in December 2003.
3. There are a number of other international
instruments which are also in existence (many of which have been
helpfully referred to in the preamble to the UN Draft Convention).
However, I shall confine my observations to the three instruments
4. Whilst the Criminal Convention has not
yet been ratified, and the UN Draft Convention has yet to be made
available for signature (and thus neither of these instruments
as yet creates any international obligation for the United Kingdom),
I shall refer to some of their provisions on the basis that they
may represent prospective international obligations for the UK.
5. I shall focus on five issues:
(I) The transactional nature of "corruption"
as defined by the Bill
(II) The requirements of the Civil Convention
(III) Corporate liability for corruption
(IV) The exception created under the Bill
for British security and intelligence agencies
(V) The intended repeal of the presumption
of corruption in the case of public officials
(I) THE TRANSACTIONAL
6. The core of the activity of corruption
identified in the Bill is rooted in the conferral of an advantage
in return for a gain. This is often described as "transactional"
corruption, and is reflected in the majority of definitions of
corruption contained in international agreements, or the domestic
law of most States. Accordingly, the definition of corruption
contained in the Bill accords with the UK's obligations under
Public International Law, as well as State practice
7. However, it is to be observed that the
UN Draft Convention (at Article 24 thereof) seeks to criminalise
the abuse of functions by a public official for the purpose of
obtaining illicit benefits for him/herself and/or a third party.
The Asia Development Bank also defines corruption as including
misuse of position by officials (in the private or public sector).
Furthermore, Article XI of the Inter-American Convention Against
Corruption (dated 29 March 1996) seeks to criminalise the "improper
use" of information and property. There is no transactional
element to these activities, and they might be considered to encompass
activities which ought to fall within a more effective definition
(II) THE REQUIREMENTS
8. The only provision in the Bill in this
regard is Clause 22, which seeks to introduce a limitation period
of 10 years for actions based on "corrupt conduct" (consistent
with Article 7 of the Civil Convention).
9. Furthermore, whilst Article 5 of the
Civil Convention provides that "each party shall provide
in its internal law for appropriate procedures for persons who
have suffered damage as a result of an act of corruption by its
public officials in the exercise of the functions to claim for
compensation from the State, or in the case of a non-state Party,
from that Party's authorities", the Bill does not seek to
create any specific procedures in this regard.
10. Whilst normal civil proceedings might
be considered to be "appropriate procedures", there
may be a need for further clarification as to whether proceedings
against the Crown (as envisaged by Article 5) can be conducted
in this manner, consistently with the requirements of Article
11. Article 18 of the Criminal Convention
and Article 38 of the UN Draft Convention seek to hold legal persons
liable for corruption and related offences.
12. Under Part 1 of the Bill, the word "person"
is used. In Clause 13 of the Bill (corruption committed outside
the UK), the provision is intended to apply to any "national
of the United Kingdom or a body incorporated in any part of the
13. It might be argued that the avoidance
of the word "person" in Clause 13, and the use of the
word "person" in Part 1 mean that "person"
should not be interpreted to include a legal person (as it would
presumed to mean in accordance with Section 5 of the Interpretation
14. This issue may require further clarification.
(IV) THE EXCEPTION
15. Clause 15 of the Bill creates a qualified
immunity for the security and intelligence services (the Security
Service, the Secret Intelligence Service or GCHQ). Acts or omissions
by officers of those organisations which would ordinarily be corrupt
will not constitute an offence, so long as there is authorisation
by the Secretary of State.
16. The Criminal Convention does not contain
any express provision which provides clear justification for Clause
15. However, it might be contended that Article 16 of the Criminal
Convention is pertinent in this regard. This states that the provisions
of the Criminal Convention "shall be without prejudice to
the provisions of any Treaty, Protocol or Statute, as well as
their implementing texts, as regards the withdrawal of immunity".
17. It might be argued that, in the event
that the UK ratifies the Criminal Convention, if Clause 15 has
become law before ratification takes place, any withdrawal of
immunity effected by the provisions of the Criminal Convention
is without prejudice to the conferral of qualified immunity by
Clause 15. This interpretation of Article 16 of the Criminal Convention
is by no means clear.
18. Accordingly, the legal basis for Clause
15 may need further clarification.
(V) THE REPEAL
19. The Bill states that Section 2 of the
Prevention of Corruption Act 1916 ("Section 2") is to
be repealed. This is stated to be due to human rights considerations.
20. The Bill thus contains no provision
dealing with "illicit enrichment". This is defined in
Article 25 of the UN Draft Convention as follows:
"Subject to its Constitution and the fundamental
principles of its legal system, each State Party shall take [consider
taking] the necessary measures to establish under its laws as
an offence the illicit enrichment or a significant increase in
the assets of a government official that he or she cannot reasonably
explain in relation to his or her lawful earnings during the performance
of his or her functions".
21. Article 25 of the said Convention is
mirrored in Article IX of the Inter-American Convention Against
Corruption . However, in the context of Article 25 of the UN Draft
Convention, it is to be observed that "the delegations of
the Russian Federation, the member states of the European Union
and others have expressed their strong wish to delete this article".
Accordingly, Article 25 may never form a part of any obligation
placed upon the UK, in the event that the UN Draft Convention
enters into force.
22. Nevertheless, whilst the intended repeal
of Section 2 may be rooted in considerations based upon the perceived
risk of violation of Article 6(2) of the European Convention on
Human Rights, it may be considered appropriate to seek further
clarification. In particular, why does the crime of "illicit
enrichment" (as defined by Article 25 of the UN Draft Convention)
not create a rebuttable and valid presumption of fact (in accordance
with the principles stated by the European Court of Human Rights
in the case of Salabiaku v. France (1988) 141-A, at paragraph
28 of the judgment).
23. Save for the observations contained
above (which identify possible scope for further clarification),
the Bill addresses the UK's international obligations as identified
above. It also contains provisions which are to be found to the
laws of comparable jurisdictions (such as the member states of
the Organisation for Economic Co-operation and Development (OECD)).
(Khawar Qureshi was called to the Bar in 1990.
He practices in Commercial, International and Public law. He is
a member of the "A" Panel of Treasury Counsel, and has
taught commercial law at Cambridge University. He was a Visiting
Lecturer in International Law at King's College London from 1995