Memorandum submitted by Monty Raphael
(BB 51)
WRITTEN RESPONSE
BY MONTY
RAPHAEL (SPECIAL
COUNSEL, PETERS
AND PETERS)
TO THE
SUPPLEMENTARY QUESTIONS
OF THE
JOINT COMMITTEE
ON THE
DRAFT BRIBERY
BILL
I have now had the opportunity, along with Jeremy
Cole and Louise Delahunty, of addressing the Joint Committee in
full on what is likely to happen in practice with the advent of
any new law of bribery. This document is intended as an addendum
to those submissions and seeks to address the supplementary questions
posed by the Committee at the conclusion of our oral evidence.
My remarks should be read in the context of
the general observation that the Draft Bill represents a sound
basis for agreement between the various interest groups, which
have, at different times, dominated the debate. I am grateful
for the opportunity to read the notes of Jeremy Cole and Louise
Delahunty.
To the extent that the "improper" performance
test is unclear or unworkable, what changes should be made to
the draft Bill?
I do not agree that the test is unclear and
unworkable. The test is a very simple one; it is, and indeed must
be, the standard which is to be applied to international business
persons of high integrity (deliberate emphasis). Moreover, it
does not matter where the function took place, or where it is
to be performed.
I agree with paragraphs 1.1 (b), 1.2 and
1.5 of Mr Cole's written submissions, and adopt them in their
entirety.
Whilst I agree that the Committee must ensure
that the question of what is "improper" does not result
in the possibility of a jury trying to consider impropriety from
a particular foreign culture perspective, I do not agree that
this or any other part of the Draft Bill is over-drafted and nor
do I agree that the conditions of "good faith," "impartiality"
and "breach of trust" unnecessarily complicate matters.
The Draft Bill contains within its provisions a useful guide,
with useful pegs on which a judge can frame a direction. The case
may be made at some stage for a model direction, but that cannot
be done before the appellate courts have grappled with this legislation,
nor before courts, practitioners and legislators have had the
opportunity of seeing how such cases will be presented and what
issues will arise.
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?
I am of the view, which I know to be shared
by others asked to comment on the Draft Bill, that there are no
gaps of consequence. The Draft Bill achieves what it is hoping
to; it is necessarily narrow in focus and implements the OECD
Convention. It does not, nor does it profess to, implement the
whole of UNCAC.
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?
The Draft Bill should not subsume any of the
overlapping statutory bribery offences. Wider reform may prove
necessary but I agree that there is merit in keeping these offences
separate. Furthermore, I am not keen for the long-awaited Draft
Bill to be delayed for the consideration of amendments that will
no doubt prove controversial.
Are there any specific changes that should be
made to the draft Bill that you have not had an opportunity to
identify before now?
(i) Should the "legitimately due"
test be removed?
We cannot find ourselves in a position whereby
the proposition that "that which is not forbidden is permitted"
is acceptable. The test should make it perfectly clear that the
bestowing of that particular advantage on that person holding
that particular office is permitted by the written law in the
country of which he is a public official, is the only test of
legitimately due.
I am aware of the concerns expressed by the
OECD representatives; however, I am of the view that this defence
should remain for the very very few cases where it can be shown
that the payment was legitimately due. I do not anticipate that
it would ever have any application if the strict test is applied
properly as no offence will have been committed and no prosecution
brought, at least in the absence of the introduction of a single
criminality test.
I do not support the "reasonable belief"
test; it will leave a gateway open where it is clear that we do
not want people to even contemplate bribery or to consider the
application of such a test by reference, for example, to local
opinion, or the Transparency International Indexes. It is not,
of course, a defence in this country to have taken legal advice
prior to the commission of an offence.
I agree, and again adopt entirely, the views
expressed by Mr Cole in paragraphs 4.14-4.18 of his written
response to the Committee.
(ii) The Corporate Offence
I have had the considerable benefit of reading
the oral evidence and written work of Professors Celia Wells and
Bob Sullivan, by which I was greatly assisted. I take the view
that it is desirable to keep clause 5 as a separate corporate
offence; it may be the real key to making progress on supply side
bribery as unless and until UK corporate entities begin to feel
the bite of enforcement there is little incentive to ensure compliance
(the only real threat is from the United States of America). I
do however take the view that corporations should be held on a
vicarious liability test. All that needs to be established is
that a bribe has been paid; it would then be for the company to
demonstrate that it had made every reasonable effort by way of
internal protocols, training and sanctions to prevent any of its
officers or employees directly or indirectly bribing foreign public
officials.
I am firmly of the view that the introduction
of the negligence test is misconceived; it is not the correct
standard upon which this offence should be judged. The test can
differ between individuals and a more qualified person may be
judged more harshly on the basis that they would be expected to
operate at a higher level of diligence.
June 2009
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