Additional memorandum submitted by Professor
Jeremy Horder (BB 12)
BRIBERY BILL: ANSWERS TO FURTHER QUESTIONS
1. Will the Bill catch simple breaches of
tort and contract in its "improper performance" test?
The simple answer to this question is that no
acts are expressly included, or expressly excluded, by the Bill,
as potential candidates for a breach of trust/faith/impartiality.
It is ultimately a matter for the jury, guided by common sense
guidance from the judge (see below). If that seems unsatisfactory
consider the alternative:
A very good reason for the approach taken in the
Bill, is that to have express inclusions or exclusions would be
to invite secondary litigation over the nature and limits of the
inclusions and exclusions (see Law Com Report, 3.88-3.98).
Suppose for example that the Bill said that
a bribery charge could not be founded "simply on a tort or
breach of contract". That would entail the court having to
decide whether there had indeed been a "tort" committed
by one or other of the parties, or a contract broken (hardly an
appropriate matter for a criminal court). This would then have
to be followed by an investigation into whether this was a "simple"
case of tort/breach of contract, or involved something more.
Further, there are further problems with a focus
on "breach of contract". If this is the focus, it would
be possible to mount a bribery prosecution respecting acts leading
up to the contract (a very common situation in which bribery will
be encountered) when there may well be duties of good faith but
breach of them is no a "breach of contract". But it
would apparently then be different post-contract, where an act
of breach should not (?) be the basis for a bribery prosecution
unless further criteria are specified.
I find this kind of legal point-and-distinction
making, as the basis for limiting the scope of the offence, very
unattractive. What the Bill does is try to get at the heart of
the issue—was there a breach of good faith etc?—leaving
aside other kinds of legal relations that there might have been
between the parties. The very problem with the 1998 Law Commission
Bill was that, with the best of intentions, it sought to clarify
matters by bringing in legal concepts to mediate, but ended up
just complicating matters and leaving unacceptable gaps.
The Law Commission was this time perhaps a bit
too definite in its conclusions about what should happen in the
examples at and around 3.158 of its Report. This is something
we actually try not to do in general, as it is a matter for the
courts (and so I apologise for that).
I actually anticipate that, in the case where
the security guard just changes jobs in breach of contract, the
judge would terminate the case at the end of the prosecution's
evidence on the grounds of "no case to answer". Were
the judge not to do this, and to let the case go ahead, what the
judge will/should say to the jury is something along the lines
of:
"The prosecution is claiming that you can
be sure that the guard's simple decision to move jobs was not
just a breach of his contract, but an improper breach of good
faith amounting to bribery. It is entirely a matter for you, but
you must remember, as the defence has strongly argued, that this
is not a case where the guard has betrayed his employer by revealing
his employer's secrets in exchange for money, or given a rival
business a tour round the building, or something of that kind.
There are probably some of your number who have left your jobs
early to go to other jobs. It is of course a common practice;
and there are economists who actually argue in favour of it as
an example of what they call `efficient' breach of contract. Whether
or not you accept these points made by the defence, and whether
they raise a doubt in your mind about the defendant's guilt, is
entirely for you to decide; but so far as the prosecution's case
is concerned, you must be satisfied so that you are sure that
the guard's conduct amounted to a breach of a duty of good faith
and hence amounted to bribery."
The same point could be made about the banking
example. Whether or not a banker's receipt of a payment to secure
the move of an entire trading team from his or her firm to another
firm is bribery, depends on the circumstances.
If the other firm has said simply, "look,
there will be advantages for all of you in coming here in salary
terms', then I don't see a jury finding bribery, or even a judge
leaving a case for the jury to consider.
However, it is certainly possible—and
not in my view wrong—for the jury to have a harder look
if the banker has received a specific secret commission to persuade
his or her fellow traders to switch firms. In principle, is it
wrong for the judge/jury to consider that a genuine candidate
for bribery? I don't believe that it is.
2. Is the meaning of "good faith"
simply loose and rhetorical?
As for the definition of good faith, the reference
to it being "loose and rhetorical" is taken completely
out of context. We were at that point seeking to explain why a
legal definition of "good faith" would not be appropriate
because it has different meanings in law. At 3.170-3.189 we explain
why we agreed with the judges that it was perfectly acceptable
for the jury to apply concepts such as "good faith"
in judging defendants' conduct, once a judge had decided there
was sufficient evidence of it to go to the jury (and that is an
important threshold check).
Moreover, Transparency International's own Bill rested
entirely on the notion of a breach of good faith (not defined
in law) as the basis for bribery (Report 3.140). Would TI have
done this if they had thought the concept "loose and rhetorical"?
I hardly think so. So, the Bill's wording is not something completely
new in this context. TI—people very experienced in tackling
corruption through law—have recommended the use of this
term, and not just the Commission and the Government.
What the Bill does is to provide some greater
clarity by providing separately for breaches of impartiality and
trust. An entire legal edifice should not ideally be founded on
a single phrase, "breach of good faith".
Having said all that, it would be possible to
insert a "for guidance" provision in the Bill that said:
"In relation to `improper performance',
a person shall not be found guilty under clauses x to x simply
in virtue of having committed a wrong in civil law'; or, less
pointedly,"
"In relation to `improper performance',
the jury should be directed to take into account whether the defendant's
acts amounted to no more than a civil wrong".
I suppose that something like this might not
do too much harm, but I don't believe that it would do much good
either. The Government has decided to trust the collective common
sense of judges and jurors on the issue of what amounts to a breach
of good faith etc. That follows the Commission's recommendations.
3. Is there a misfit between the fault elements
for P and for R?
There is a deliberate mis-match between the
fault elements for P and for R. P's fault element must be stringent,
whereas it is questionable whether R needs protection by way of
explicit fault element. All bar one of the Law Commission consultees
who addressed this question thought that no specific fault requirement
was needed in R's case, beyond what is implicit in the notion
of improperly asking for an advantage etc.
Especially in private commercial contexts, it is
vital that companies know what they can and cannot do, in seeking
to secure business from other companies and from Governments.
In that regard, as I said to the Committee, P's acting on an intention
that R should behave improperly provides the "line in the
sand" that must not be crossed.
However, when it comes to R's conduct, matters
are different because R is occupying a role (customs officer;
judge, European sales manager, managing director; security guard
etc) which is partly defined by its good faith, or trust, or impartiality
requirements. That has the following consequence.
To insist that the prosecution prove that R
knew that he or she was not meant to depart from these obligations
is a bit like asking the prosecution to show, in a case where
a nurse has stolen from a patient, that the nurse was aware that
it was a breach of trust in the nurse-patient relationship to
steal from patients. To require proof of that would be superfluous.
There might be an exceptional case in which
it could plausibly be claimed that a company agent, say, was unaware
that he or she could not place a contract with the company that
paid him or her the highest secret commission (but how plausible
is that?). Then, this lack of awareness could be taken account
of in sentencing.
It must be kept in mind that, in many cases,
the prosecution will have a choice whether or not to pursue P,
or R, or both together. No doubt, if R seems genuinely innocent
when agreeing to accept an advantage in breach of a duty of good
faith/impartiality/trust, then that would be a reason to pursue
P, and to persuade R to give evidence against P.
4. The concerns of the UK Anti-Corruption
Forum
I do not really have enough information to go
on here. It may be that the Forum is concerned with the points
made in my 3. above.
Further, under both clauses 1 and 2, it is of course
not necessary that any advantage actually changes hands. It is
enough that there has been an offer, or an acceptance, in circumstances
where it would be improper to accept and it is P's intention that
R perform a duty improperly or be rewarded for the same. I don't
see this as controversial.
Finally, there can obviously also be cases where
both P and R commit the offence independently, without the other
being involved. P may make the offer, but R never receives it,
or discards it, or is an under-cover agent investigating corruption
etc. Contrariwise, R may make special arrangements for P in anticipation
that P will reward R, but P never takes up the arrangements or
never makes any payment. Again, I don't see this as controversial.
June 2009
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