Memorandum submitted by GRECO (BB 38)
DRAFT BRIBERY
BILL
The following comments on the draft Bribery
Bill have been drawn up under the sole responsibility of the Secretariat
of the Group of States against Corruption (GRECO), the Council
of Europe's anti-corruption monitoring body.[179]
These comments concern selected aspects of the Bill in relation
to which previous results from GRECO evaluations appear relevant.
They cannot be construed as a binding opinion or pre-empt any
position GRECO might take at a later stage in respect of the United
Kingdom's compliance with previous GRECO recommendations.
THE PROPOSED
NEW OFFENCES
OF ACTIVE
AND PASSIVE
BRIBERY
In 2007, GRECO examined within the framework
of its Third Evaluation Round, the compliance of United Kingdom
bribery legislation and practice with the Council of Europe Criminal
Law Convention and its Additional Protocol (ETS 173 and 191)
(hereinafter "the Convention"). In the Third Round Evaluation
Report it is concluded that "…current legislation,
which is drawn from a number of sources, would benefit from reform
in order to provide a fully coherent and consistent terminology
and legal framework for corruption offences. This would no doubt
be beneficial for legal practitioners as well as for the wider
public. The on-going reform process is therefore supported…"
(paragraph 133, GRECO Eval III Rep (2007) 3E). The same Report
also explains where current bribery legislation raises issues
in respect of the Convention; for example, there is inconsistent
terminology regarding the advantage which constitutes a bribe
in the various sources of law, third party beneficiaries are not
explicitly covered by the common law offence, bribery in the private
sector does not expressly capture situations where the advantage
is given to a third party, the categories of persons covered by
the bribery offences would merit clarification and trading in
influence is not criminalised as such. GRECO addressed the following
recommendations to the United Kingdom[180]
(paragraph 134, GRECO Eval III Rep (2007) 3E):
i. to proceed with the efforts to revise existing
criminal law in order to provide for comprehensive, consistent
and clearer definitions of bribery offences;
ii. to consider criminalising trading in influence
in accordance with Article 12 of the Criminal Law Convention
on Corruption (ETS 173) and thus withdrawing or not renewing the
reservation relating to this Article of the Convention.
It follows from the above that the objective
of the Bribery Bill, which is to provide for a new consolidated
law of bribery offences to replace the current blend of common
law and statutory legislation is fully in line with GRECO's recommendation
i. However, it does not appear from the Bribery Bill that the
offence trading in influence will be an offence as such.
EXTRA-TERRITORIAL
REACH OF
THE OFFENCES
GRECO would always favour wide possibilities
for the prosecution of corruption offences committed abroad. Moreover,
the suggested extension in this area may hopefully make it possible
for the United Kingdom to withdraw or limit current reservations
in respect of Article 17 of the Convention.
REMOVAL OF
THE REQUIREMENT
FOR THE
ATTORNEY GENERAL'S
CONSENT FOR
PROSECUTION OF
BRIBERY OFFENCES
This matter was already raised in GRECO's First
Round Evaluation Report on the United Kingdom in 2001: "The
second recommendation that the GET[181]
wished to address in this connection concerns the requirement
that the Attorney General or the Solicitor General, who are legally
qualified members of the executive, should give his/her consent
before any prosecution for the offences under the Prevention of
Corruption Acts can be instituted. The GET notes that this is
one of the occasions where the Attorney General can interfere
with the autonomy of the DPP when making decisions to prosecute
or not. The GET considered that there does not seem to be any
evident justification why decisions to prosecute made by professionals
pursuant to established standards should be reviewed by the Law
Officers (which might be interpreted as a form of political control)
in corruption cases […]. On the contrary, the existing arrangement
carries the risk of undermining public confidence in the functioning
of the system" (paragraph 90, GRECO
Eval I Rep (2001) 8E).
Consequently, the abolishment of the requirement
for the Attorney General's consent for prosecution of bribery
offences would eliminate the reasons for the concerns highlighted
in the above mentioned report.
THE PENALTIES
PROPOSED IN
RELATION TO
THE NEW
OFFENCES
The penalties proposed—maximum 10 years
of imprisonment—go beyond the current maximum penalty, which
carries up to seven years of imprisonment. The proposal appears
adequate in comparison with the sanctions provided for in several
other GRECO member States.
PARLIAMENTARY PRIVILEGE
IN RESPECT
OF EVIDENCE
This matter was raised in GRECO's First Round
Evaluation Report on the United Kingdom: "The GET noted
that United Kingdom law provides for immunity from prosecution
in very limited situations. The only issue that appears to exist
is Article 9 of the Bill of Rights, which prevents evidence
being given in court that questions proceedings in Westminster.
The GET already commented on the need to hold Members of Parliament
to the highest standard of probity. The Home Office's White Paper,
which proposes exempting the new corruption offence from the application
of Article 9, seeks to achieve precisely that and the GET would
naturally support this change. The GET, therefore, recommended
that corruption offences be exempted from the application of Article
9 of the Bill of Rights" (paragraph 97, GRECO Eval
I Rep (2001) 8E).
It follows that the proposal in the Bribery
Bill to set aside Parliamentary privileges to make evidence from
proceedings in Parliament admissible in the prosecution of a member
of Parliament for bribery offences was already supported by GRECO
at the time.
June 2009
179 The United Kingdom is a contracting party to the
Council of Europe Criminal Law Convention on Corruption (ETS 173)
and the Additional Protocol thereto (ETS 191) as well as a member
of the Group of States against Corruption (GRECO), which monitors
the implementation of Council of Europe anti-corruption instruments
in 46 States, including the United States of America. GRECO
has adopted three evaluation reports in respect of the United
Kingdom, in 2001, 2004 and 2008 and four compliance
reports. Back
180
The United Kingdom has been invited to present a report on the
implementation of the recommendations by 31 August 2009. Back
181
"GET"-GRECO Evaluation Team. Back
| 
