APPENDIX 3
THE NEGLIGENCE TEST
The Offence
The liability of a commercial organisation (as
defined) for the offence is proved by the prosecution establishing
the three elements set out in clause 5(1) sub-clauses (a) to (c):
A relevant commercial organisation ("C")
is guilty of an offence under this section if:
(a) a person ("A") performing services
for or on behalf of C bribes another person,
(b) the bribe was in connection with C's business,
and
(c) a responsible person, or a number of such
persons taken together, was negligent in failing to prevent the
bribe.
Negligence
The test of fault included in clause 5(1)(c)
of the draft Bill is the negligent failure to prevent the bribe
proved under limbs (a) and (b).
In its Report "Reforming Bribery" the Law
Commission does not offer any guidance on what the test of negligence
is. However, in its Working Paper No 31 The Mental Element
in Crime, the Law Commission described negligence thus: "a
person is negligent if he fails to exercise such care, skill or
foresight as a reasonable man in his situation would exercise".
Thus it would be no defence for the allegedly
negligent person to say that he considered whether there was a
risk and decided there was none. According to this definition,
if, objectively, he ought to have foreseen a risk, that is sufficient.
However, if we have correctly described the
test of negligence that a jury would be directed to apply, there
is an argument that one of the factors a jury would be entitled
to take into account in deciding how "a reasonable man in
his situation" would behave is the training the allegedly
negligent person received and the procedures he followed: essentially
the anti- corruption policy of his employer.
By importing into the test the anti-corruption
policy and procedures of the employer, negligence is not necessarily
a purely objective test, although this would appear to operate
to the detriment of the allegedly negligent and the company which
employs him. If the allegedly negligent person has a higher standard
of knowledge and training than the reasonable person, as a senior
employee may well have, a higher standard will be expected of
him. The reverse is not true.
Does this lead to an unintended consequence:
that a corporate that has an exceptionally well thought out and
implemented anti-corruption policy is in a worse position if a
bribery offence is committed in connection with its business,
as the standards expected of its employees and officers would
be that much higher by virtue of the training received and procedures
in place?
If correct, and if the limitation on the availability
of the statutory defence remains, a company with a well trained
senior officer in charge of its anti-corruption policy who is
allegedly negligent (or as described below, is not himself negligent,
but is one of a number of persons whose collective actions were)
a higher standard will be expected of him due to the company's
exemplary anti-corruption policy, yet the company will be unable
to rely on that exemplary policy to establish the statutory defence.
Negligence of a number of persons taken together
It would appear that the negligence requirement
can be satisfied by the collective actions of a number of individuals
having an anti-corruption function falling below a reasonable
standard (if that is what the negligence of a number of responsible
persons taken together means). By implication the test must be
satisfied where no one individual was negligent in failing to
prevent the bribe, otherwise the words would be unnecessary.
This is notwithstanding the Law Commission counselling
against the adoption of something akin to the regime introduced
by the Corporate Manslaughter and Corporate Homicide Act 2007
("the CMCHA 2007"), where it is not necessary to prove
that any one person possessed a subjective fault element (paragraphs
6.33 to 6.39 of the Report). Under the CMCHA 2007 it is possible
to aggregate negligent acts to come to a global view that an unlawful
killing was caused by gross negligence on the part of the company.
However, whilst the CMCHA 2007 aggregates the
individual negligence of a number of employees for the purpose
of considering whether or not a company was grossly negligent,
the current draft Bribery Bill proposes an aggregate of different
acts or omissions, which may not individually be negligent, but
which together form a basis for arguing that there has been `collective
negligence'.
The Law Commission was clearly opposed to this,
amounting as it does to a significant extension of liability.
It states at paragraph 6.103 of its Report that enabling the prosecution
to fall back on proof of negligent failure to prevent bribery
through proof of a series of acts or omissions (by one or more
people connected to the company) that cumulatively amount to such
negligence, would be inconsistent with the provision of the adequate
systems defence.
It is far from clear how this test of collective
negligence might operate in practice. What is clear is that the
sufficiency of collective negligence is an extension of liability
to that envisaged by the Law Commission. It is, we suggest an
unnecessary and unwarranted one, particularly bearing in mind
what we say about the limitation of the defence where a senior
officer with an anti-corruption function is one of those responsible
persons but is not, by himself, negligent.
Gross Negligence
The most serious example of negligence as a
basis for criminal liability is that found in gross negligence
manslaughter. Here, the negligence requirement is qualified: it
must be gross negligence—an objective test requiring the
failure to recognise a risk obvious to the reasonable and prudent
professional which is so bad in all the circumstances as to amount
to a criminal act or omission. Given the gravity of this offence,
we suggest that gross negligence would be the appropriate test.
It is worth adding that although gross negligence
does not require the prosecution to adduce evidence of a person's
state of mind (which is probably irrelevant for the purposes of
`ordinary' criminal negligence) such evidence might be relevant
to the jury's consideration when assessing the grossness and criminality
of the conduct (see Attorney General's Reference No.2 of 1999
[2000] 1 Cr App R 207).
Burden and Standard of Proof
Finally, we are concerned to understand how
the test of negligence will fit with the burden and standard of
proof in criminal proceedings. It is clear that it will be for
the prosecution to prove to the jury beyond a reasonable doubt
that there has been negligence. However, it is less clear what
test is to be applied by the jury in these circumstances ie must
they be sure in relation to an act or omission which a reasonable
"responsible person" would regard as negligent, or must
they be sure of that, which on a civil standard (ie balance of
probabilities), would amount to negligence? If it were the latter
the prosecution would have to prove beyond a reasonable doubt
that something happened/failed to happen which on the balance
of probabilities amounts to negligence. This, we contend, is a
confusing position.
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