Memorandum submitted by Louise Delahunty
(BB 40)
WRITTEN RESPONSE
TO SUPPLEMENTARY
QUESTIONS FROM
JOINT COMMITTEE
ON THE
DRAFT BRIBERY
BILL
1. To the extent that the "improper"
performance test is unclear or unworkable, what changes should
be made to the draft Bill?
1.1 The general offences of giving or receiving
bribes are framed around the "improper performance"
test. Under the draft Bill, "improper" means that the
function is performed in breach of a "relevant expectation".
A "relevant expectation" is that the function will be
performed in "good faith", "impartially" or
not in "breach of trust". The expectation is to be that
of a "reasonable person".
1.2 In our view, the first issue with the
"improper performance" test is that good faith, impartiality
and trust are not defined. The second issue relates to the "reasonable
person" test. The Law Commission has indicated that these
are not technical, civil law terms, but that it will be left to
the jury, having heard the evidence, to determine what is expected
of a person in a particular position and whether or not he has
performed the function in good faith or impartially or in breach
of trust.
1.3 We understand that in seeking to define
"improper" by reference to good faith, impartiality
and breach of trust, the Law Commission has sought to achieve
greater clarity and certainty in the law. However, we do not believe
that defining "improper" in this way does this, but
rather raises further questions concerning what is good faith,
impartiality and breach of trust. We are of the view that this
complicates the test to be applied and that a simpler approach
may be to delete Conditions A to C in Clauses 3(3) to 3(5) and
leave it for the jury to be directed upon the meaning of "improper",
on the basis of the specific facts of the case. There are other
consequential amendments, including the deletion of clauses 3(6)
and 3(7).
1.4 If the "improper" performance
test is to be retained, we believe that the Law Commission's recommendation
that an "in the circumstances" test should be applied
is right, and that this should be the direction given to the jury.
1.5 An alternative approach to provide clarity
would be to adopt the test advocated by the Criminal Bar Association
and the Law Reform Committee of the Bar Council.[186]
For offering or soliciting a bribe they recommend: "an
inducement dishonestly offered and intended to persuade someone
who has a legal duty to act properly and impartially, to act improperly
and partially towards another when purporting to discharge his
duty." For receiving a bribe, they recommend: "the
receipt by any person having a legal duty to act properly and
impartially, of any consideration, payment of promise, which was
or may have been made as an inducement to act improperly or partially."
The mental element would be achieved if the recipient knew, or
believed that the payment or promise might be such an inducement.
This test also has the advantage of incorporating the Ghosh test.
1.6 Businesses must know the parameters
within which they operate so the Bill should also be amended to
take account of relevant industry standards and guidance. In the
course of evidence to the Committee, the need for guidance has
been highlighted, but currently different guidance can be found
around the world for different industries. In order that a UK
corporate can properly mitigate risk it should be dealing with
standard, Government approved guidance. A new Clause 3(9) could
be inserted dealing with this point as follows, "In deciding
what a reasonable person would expect, the Court must consider
whether he followed any relevant guidance which was at the time
concerned (a) issued by a supervisory authority or any other appropriate
body, (b) approved by the Government, and (c) published in a manner
it approved as appropriate in its opinion to bring the guidance
to the attention of persons likely to be affected by it."
This mirrors clause 330(7B)(8) of the Proceeds of Crime Act 2002 for
which guidance is drafted by regulated businesses and submitted
to the Treasury for approval. This gives the option for trade
associations or their bodies to draft their own guidance and have
it approved by, for example, BERR.
1.7 Guidance will need to take into account
the differences between a multi-national corporation and smaller
businesses. It may also need to recognise matters which are specific
to certain industries and sectors. There is guidance currently
available for businesses, (both international and domestic guidance),
but it needs to be brought together under one umbrella for the
purposes of this legislation. BERR already provides guidance on
anti-corruption policies and best practice and should work with
businesses and industry to create approved guidance.
2. Does the draft bill leave any gaps in the
law or can we rely on other legislation (for example the Competition
Acts) to prevent holes emerging?
2.1 The current consultation on bribery
is intended to be much narrower in remit than the previous consultations.
The Law Commission and the Home Office agreed that the review
should concentrate on bribery alone rather than the broader aspects
of corruption. Offences such as insider dealing and those under
competition law are therefore expressly outside the scope of the
bribery review.
2.2 The Bribery Bill creates a number of
generic offences. Separate legislation such as the Enterprise
Act 2002 or the Honours (Prevention of Abuses) Act 1925 deal
with specific offences arising in a specific context. It is appropriate
to deal with specific offences in other legislation, although
the generic offences in the Bribery Bill may overlap with conduct
falling within the scope of that other legislation.
3. Should the draft Bill subsume any of the
overlapping statutory bribery offences (such as offences under
the Honours (Prevention of Abuses) Act 1925), or is there merit
in keeping them separate?
3.1 The correct approach is to keep separate
the general offences proposed under the draft Bill from other
existing corruption-related offences. This is a practical way
of dealing with reforming the law on bribery.
3.2 With regard to legislation such as the
Honours (Prevention of Abuses) Act 1925 and the Political
Parties, Elections and Referendums Act 2000, this is rightly kept
as separate legislation.
3.3 This approach would also be in line
with the regimes in a number of other jurisdictions (including
Germany, France and Italy) in which general bribery offences are
dealt with in the respective criminal codes and the more specific
corruption offences in separate legislation.
4. Are there any specific changes that should
be made to the draft Bill that you have not had an opportunity
to identify before now?
4.1 It is recognised that the "adequate
systems" defence to Clause 5 is important. As others
including Professor Horder have recommended, a set of guidance
and standards to detail what is expected of businesses should
be created. Ideally, for some industries and sectors this will
need to be specific to that industry or sector. When looking at
this guidance consideration should be given to how small businesses
will ensure they can meet the standards required. We would not
be starting from scratch in drafting such guidance, but as noted
above it needs to be brought together in one approved Code of
Practice which businesses can rely upon. We recommend that this
is done in consultation with the CBI and other business organisations
and experts.
4.2 We do not think that case 6, as set
out in Clause 2(5) of the draft Bill, is needed and should be
deleted. We cannot conceive of any situation where a case will
be able to be prosecuted against R for being bribed, where R does
an act "in anticipation of" R requesting, agreeing to
receive or accepting an advantage where the advantage is not subsequently
offered/requested. The second scenario envisaged by case 6, where
R does an act which "in consequence of" R requesting,
agreeing to receive or accepting an advantage is already dealt
with by case 3.
5. What is your reaction to the proposal that
the "legitimately due" test be removed from clause 4 (while
keeping the clause as it stands in all other respects)? Would
it lead to the offence being overly strict or criminalising conduct
that would not be criminalised under the present clause?
5.1 In our view if the "legitimately
due" clause was to be removed this would create a strict
liability offence.
5.2 It is accepted that the meaning of the
term "legitimately due" should be clarified and we suggest
that it should be amended so that the offence is not committed
if the advantage was permitted or required by a written law or
regulation of the foreign public official's country, as in the
case of the FCPA. Under the FCPA, it is a defence if, "the
payment , gift, offer, or promise of anything of value that was
made, was lawful under the written laws and regulations of the
foreign official's, political party's, party official's, or candidate's
country…..".[187]
5.3 The "reasonable belief" test
has also been removed in the current draft of the Bill. The "reasonable
belief" defence allows a person making a payment to a foreign
official to take steps to identify whether the payment is legitimate
or not, for example by taking legal advice, and in doing so he
should be able to rely upon such advice. This would ensure that
companies can properly determine whether they are operating on
a legitimate basis. In the Law Commission's proposed Bill, whether
a belief is reasonable would be determined having regard to all
the circumstances, including any steps taken to find out what
was required or permitted, (see Clause 5(2) of the Law Commission's
draft Bill).
5.4 This type of defence exists in bribery
legislation in other jurisdictions, including under the FCPA.
The Department of Justice's guide to the FCPA notes that, "whether
a payment was lawful under the written laws of the foreign country
may be difficult to determine. You should consider seeking the
advice of counsel or utilizing the Foreign Corrupt Practices Act
Opinion Procedure when faced with an issue of the legality of
such a payment."
5.5 By removing the "legitimately due"
test and the "reasonable belief defence" from Clause
4 there is a concern that UK businesses will be put at a
competitive disadvantage by eliminating the means of allowing
a business to take steps to identify whether a payment is legitimate
or not.
June 2009
186 Joint Response of the Criminal Bar Association
and the Law Reform Committee of the Bar Council to the Law Commission
Reforming Bribery Consultation Paper LC185. Back
187
§ 78dd-1 (c) (1). Back
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