Additional memorandum submitted by Ministry
of Justice (BB 53)
QUESTIONS FOR
WRITTEN ANSWER
BY THE
SECRETARY OF
STATE FOR
JUSTICE
These are questions that would ordinarily have
been posed at the oral evidence session on 17 June. However,
due to a lack of available time, they are provided for written
answer instead.
PENALTIES
Q1. How real is the danger that civil recovery
proceedings are likely to breach human rights legislation or give
rise to excessively punitive outcomes?
A Court is a public authority for the purposes
of the Human Rights Act 1998 and must not act in a way that
is incompatible with Convention rights when considering whether
to confiscate property that has been identified as the proceeds
of crime. The court should take into account all relevant circumstances,
including any interests of third parties such as creditors.
CROWN APPLICATION
Q2. What is the justification for excluding
Crown departments (such as the Ministry of Defence) from the offences
under the draft Bill?
Clause 12 makes clear that the offences
apply to Crown servants. Crown departments are not ordinarily
liable to prosecution for criminal offences. In relation to the
new clause 5 offence the Crown does not fall within its policy
focus. This clause seeks to address the potential for bribery
to be employed on the part of those businesses operating in the
UK in the acquisition of business in foreign markets, principally
developing markets. Generally the Crown does not engage in commercial
activity. The mischief that the offence seeks to address is failure
of governance structures within commercial organisations which
allows bribery to be used to secure a business advantage.
TRANSITIONAL ISSUES
Q3. Would the Bill catch payments made after
it comes into force under agreements that were entered before
it came into force, provided the agreements were subsequently
maintained or re-iterated?
In accordance with the general principle that
criminal offences should not have retrospective effect offences
which are committed wholly or partly before the commencement of
the new provisions will fall to be prosecuted under the current
law (clause 18). Therefore an agreement before commencement date
that a series of payments as part of a corrupt bargain shall be
paid in the future can be prosecuted as a substantive bribery
offence or possibly a conspiracy to bribe, depending on the precise
circumstances, under existing law. The future payments if taking
place after commencement of the new provision may well, depending
on the circumstances of the case, amount to a series of separate
bribes and therefore be susceptible to the new provision. In the
alternative, if the court took the view that the future payments
were all part of a single scheme that began before commencement
then the conduct would fall to be dealt with under exiting law.
The offences at clauses 1, 2 and 4 reflect the scope
of criminality under the existing law and therefore it is really
to a very large extent immaterial which law applies.
[CLAUSE 5]
Q4. It has been suggested that clause 5 should
be turned into a civil/regulatory regime for imposing fines on
companies rather than imposing a criminal offence. This would
leave corporate criminal liability for bribery to be addressed
(as with other criminal offences) by the Law Commission's ongoing
review. What are your views, including whether a civil regime
would meet the UK's international commitments?
It is the Government's view that it is inappropriate
for bribery to be treated as anything other than a serious criminal
offence. The government has however considered the civil or administrative
option. Our view is that while a civil scheme may deliver a similar
impact as the criminal route (ie financial penalty) the stigma
of criminal offence has much more deterrent potential than a civil
penalty. In addition an administrative or regulatory scheme would
be required to deal with all levels of infringements ranging from
relatively minor procedural matters, relating to record keeping
for example, right through to serious cases of bribery. There
was therefore a risk that cases of serious corporate bribery might
be disposed of as lesser more regulatory infringements through
self-referral and plea bargaining. Also, although self-referral
with a view to a non-criminal sanction is one of our policy aims
the serious criminal offence plays an important role as an incentive
to self-referral. Finally the establishment of a civil regulatory
regime would involve very significant amounts of public funds
and it would also give rise to a very large new regulatory burden
for business. So in summary such a scheme would provide little
benefit in return for considerable public resources.
As regards the UK's international obligations,
the relevant obligations including the OECD Convention, are drafted
in such a way as to give states the alternative of applying civil
or administrative sanctions. However, consistent with our approach
in creating the explicit offence of bribery of a foreign public
official in clause 4, we believe that creating a criminal offence
in clause 5 ensures the highest international standards for
combating bribery in the business context.
June 2009
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