Letter from the Chairman of the Joint
Committee on Human Rights (BB 61)
Thank you for your letter dated 12 May
2009 requesting the view of the Joint Committee on Human
Rights (JCHR) about a number of potential human rights issues
arising from your scrutiny of the Draft Bribery Bill.
I apologise for my delayed response, but understand
that this letter will arrive in time for you to consider its contents
before you agree your final report. My Committee is currently
dealing with a high volume of work and therefore I have limited
our substantive comments to three headline issues: (a) the ability
of the Bill to enhance the protection of human rights by the UK;
(b) reverse burden of proof (Clause 5); and (c) the right to a
fair hearing and the application of parliamentary privilege (Clause
12). The JCHR looks at every bill which is considered by Parliament,
after its introduction on second reading. We may return to some
of the issues which you have identified in your letter when the
Bill is introduced in its final form.
(a) A human rights enhancing Bill?
As the Secretary of State for Justice makes
clear in his introduction to the Draft Bill, the purpose of this
Bill is to implement the United Kingdom's obligations under the
UN Convention against Corruption, the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business
Transactions and the Council of Europe's Criminal Law Convention
on Corruption.
In the 2004 foreword to the UN Convention,
the then UN Secretary General, Kofi Annan said:
Corruption is an insidious plague that has a
wide range of corrosive effects on societies. It undermines democracy
and the rule of law, leads to violations of human rights, distorts
markets, erodes the quality of life and allows organised crime,
terrorism and other threats to human security to flourish.[273]
A very similar statement is made in the preamble
to the Council of Europe Criminal Convention. The JCHR is currently
running an inquiry on business and human rights. Although we are
focusing on the relationship between the UK Government and the
activities of UK Companies, we have received a significant number
of submissions containing allegations about the impacts which
the operations of individual private businesses may have on human
rights in countries where the Government may be unable or unwilling
to meet its obligations to implement fundamental guarantees and
protections for human rights. Operations in countries with weak
governance or in conflict zones lead to enhanced risks of negative
human rights impacts and may call for enhanced due diligence on
the part of any companies considering their practices.
We welcome the policy in the Bill, which aims
to enhance the transparency of the law on bribery and corruption
in the UK. In so far as this Bill aims to give effect to the underlying
international law on bribery and corruption, we consider that
it has significant potential as a human rights enhancing measure
both within the UK and in respect of its proposed extraterritorial
effects.
(b) Reverse burden of proof (Clause 5)
The first of the issues which you asked us to
examine relates to the new corporate criminal offence of negligently
failing to prevent bribery (Clause 5). In your letter, you expressed
your Committee's concern that the reverse burden of proof proposed
in relation to a proposed defence could engage the presumption
of innocence guaranteed under Article 6(2) ECHR. The Explanatory
Notes produced by the Government explain:
Article 6(2) of the Convention requires that
every person charged with a criminal offence shall be presumed
innocent until proved guilty by law. The Government considers
that placing the legal burden on the defendant is compatible with
Article 6(2). The Government considers that the reverse burden
pursues a legitimate aim—namely ensuring that an organisation
whose responsible person (or persons) has failed to prevent bribery
on its behalf should be guilty of an offence unless the organisation
had adequate procedures in place to prevent bribery being employed
on its behalf—and is proportionate to achieve that aim.
The Government notes that the procedures that an organisation
had in place to prevent bribery being employed on its behalf is
a matter that is particularly within the knowledge of the defendant
organisation. The organisation will have ready access to the information
needed to establish the existence of the defence. In light of
this, it would be very difficult to place the legal burden on
the prosecution to establish the contrary.[274]
In short, we consider that the Government's analysis
is broadly correct. We do not consider that the proposal to reverse
the legal burden of proof in respect of the proposed defence in
Clause 5 is likely to lead to a significant risk of incompatibility
with Article 6(2), as currently drafted.
The presumption of innocence in the Convention—and
the common law of England and Wales—does not place a complete
prohibition on reverse onus offences (ie where the burden to prove
innocence is placed on a defendant). However, reverse onus offences
must operate within reasonable limits.[275]
Placing a purely evidential burden on a defendant is generally
thought to be reasonable and compatible with Article 6(2) ECHR.
Where the persuasive, or legal, burden passes to the defendant,
both domestic courts and the European Court of Human Rights consider
whether the wider purpose of the offence can be met while also
securing a fair trial. It is clear that in this case, the Government
intends the legal burden to pass to the defendant company to show
that they had procedures in place to prevent bribery and that
those procedures were adequate.
Domestic courts generally ask themselves three
questions to determine whether a reverse legal burden is compatible
with Article 6(2): (a) What do the prosecution have to prove in
order to transfer the burden to the defendant?; (b) Does the burden
imposed on the accused relate to something which is likely to
be difficult for him to prove, or does it relate to something
which is likely to be within his knowledge or to which he has
ready access?; (c) What is the nature of the threat to society
which the provision is designed to combat?[276]
Courts will also bear in mind the seriousness of the penalty faced
by the accused.[277]
Applying this test to Clause 5, it is our view
that there is very little risk of incompatibility with Article
6(2). Before the reverse onus provision comes into play, the prosecution
must first show that relevant persons at the accused company had
negligently failed to prevent the bribery concerned taking place.
The Committee has heard evidence that this exercise may include
consideration of the procedures in place at the individual company,
but that the evidential and persuasive burden will remain with
the prosecution to establish negligence. Secondly, information
relating to the procedures of the company will be entirely within
that company's knowledge. Finally, the offence seeks to implement
international standards designed to curtail corruption in public
offices, a clearly recognised threat to democracy and good governance.
Although the penalty associated with this offence is an unlimited
fine, unless the fine is disproportionate in the circumstances,
our view would not be changed by the monetary value of the fine.
Proposal to change current draft to remove requirement
for "negligent failure"
In her evidence to the Committee, Professor
Celia Wells has suggested that the current draft of Clause 5 should
be amended to remove the requirement for the prosecution to prove
negligent failure to prevent bribery taking place. She argued
that this provision made the offence unduly complex and effectively
required the prosecution to prove negligence while then introducing
a defence based on the assertion that the accused Company had
not been negligent. Professor Wells recommended that there should
be a presumption that where a senior officer of the defendant
Company was negligent or otherwise at fault, the procedures in
place were not adequate. We have been asked to express our view
on this proposal.
In our view, the removal of the requirement
that the prosecution prove negligence would clearly effect the
Court's analysis of the compatibility of this provision with the
presumption of innocence and could increase the risk of incompatibility
with Article 6(2) ECHR. The reason for this is simple: by changing
the offence in this way, the offence becomes in effect a strict
liability offence which the defendant Company can only avoid by
proving that the procedures which it had in place to avoid bribery
were "adequate". In our view, despite the increased
risk of incompatibility, provided the penalties involved were
proportionate, the public interest in avoiding bribery and corruption
may be sufficiently high to render the reversal of the burden
of proof in this case reasonable.
Professor Wells is correct to limit the presumption
that Company procedures are inadequate to circumstances where
senior officers of the company are proved to be negligent or otherwise
at fault. In our view, there would be a significant risk of incompatibility
with Article 6 unless the burden remains with the prosecution
to prove that those officials had been negligent or otherwise
at fault. Without this requirement, in our view, there would be
a significant risk of incompatibility, as the defendant company
would be subject to a strict liability offence without any opportunity
to raise a substantive defence.
If domestic courts were to conclude that the
revised Clause 5 were incompatible with Article 6(2), they
would in our view be able to read down the provision in question
to leave the evidential burden with the company, but pass the
persuasive burden to the prosecution. This would mean that the
company would be required to prove that they had procedures in
place to prevent bribery, but the prosecution would retain the
burden of persuading the Court that those procedures were inadequate.
If this lesser burden were placed on the defendant
company, this would not, in our view, lead to a significant risk
of a breach of the presumption of innocence either at common law
or under Article 6(2).
(c) Parliamentary privilege and the right
to a fair hearing (Clause 12)
The second substantive issue which you have
asked us to consider is the impact of Clause 15 on the right
to a fair hearing as guaranteed by Article 6 ECHR. That clause
removes parliamentary privilege in relation to the words or conduct
of any MP or Peer who is a defendant or co-defendant in bribery
proceedings. You asked us to address the issue of fair trial under
these proceedings because although a statement made by a defendant
could be used as evidence against him, exculpatory statements
made by others could not, unless they were repeated or confirmed
outside Parliament. Article 6 ECHR imposes particular standards
in respect of criminal proceedings. In addition to general right
to equality of arms as between the prosecution and the defence,[278]
the Convention protects the right of any defendant to have access
to witnesses who support his defence on the same conditions as
the prosecution has access to witnesses who intend to produce
evidence against him.[279]
So, for example, where the prosecution fails to call a witness
who is central to the defence case there may be a breach of Article
6 ECHR[280]
Similarly, where a procedural rule operates to ensure that a certain
witness cannot be compelled to give evidence, this immunity may
lead to a breach of Article 6 ECHR when the witnesses' testimony
is key either to the case against the accused or to his defence.[281]
Against this background, we consider that there is a significant
risk that breaches of Article 6 ECHR could arise as a result
of the operation of Clause 15. We understand that the Clerk of
the House of Commons has agreed with this position in his submission
to the House of Commons Justice Select Committee inquiry on the
Parliamentary Standards Bill.
There are a number of means of reducing this
risk, each of which would have very different consequences. The
first, would be to remove the limited exemption from privilege
currently proposed. The second, would be to extend the exemption
to remove the unfairness which the limited exemption creates.
We recognise that this may be an issue with which your Committee
will have to grapple.
Looking at this issue from a human rights perspective,
we would prefer the second solution unless a strong human rights
based argument can be made for maintaining privilege to the possible
exclusion of prosecution in cases where prosecution would otherwise
be possible. If absolute privilege were retained, circumstances
could still arise where an individual might seek to rely on exculpatory
evidence only available in parliamentary proceedings. If this
evidence were key to an individual's defence and not able to be
brought before the court by other means, we consider that a similar
risk of incompatibility with Article 6 ECHR could arise and
it would be open to the accused to apply to the European Court
of Human Rights to establish that the UK had beached his or her
right to a fair trial.
In any event, our view, the retention of privilege
in these cases could mean that prosecutions may be frustrated
in respect of serious allegations of corruption. For example,
if a Member were implicated in an allegation of corruption, which
involved a payment in return for taking certain actions in respect
of a committee report or in debates on the floor of the House,
should and would privilege impede a police investigation looking
at his or her conduct in the House for the purposes of a prosecution?
On the other hand, is the risk that members or witnesses to select
committees might be deterred from speaking freely in parliamentary
proceedings, which is in itself an important right. In the light
of the social importance of ending corruption in public life and
that the limited exemption to privilege is being proposed for
this sole purpose, we would argue that the chilling effect on
individual members should be limited.
It has been argued that, since these cases may
be few and far between, absolute privilege should be maintained.
The same argument runs in the opposite direction: the exemption
will only apply in those few cases where corruption is alleged
and evidence adduced in Parliament is relevant to a prosecution
and unavailable through other means. In the light of the limited
number of cases where bribery might be alleged, in our view, the
limited impact on privilege is likely to be proportionate to the
beneficial impact of these proposals on public conduct, including
the conduct of MPs and Peers.
I hope that this response assists you in your
scrutiny of the Bill and look forward to reading your Committee's
report in due course.
Andrew Dismore MP
Chair, Joint Committee on Human Rights
July 2009
273 UN Office on Drugs and Crime, Foreword, The UN
Convention against Corruption, Kofi Annan, pages iii-iv. Back
274
Cm 7570, paragraphs 104-105 Back
275
Salabiaku v France (1988) 13 EHRR 379, para 28. For a recent
summary of relevant cases on this issue, please refer to R v Roy
Clarke [2008] EWCA Crim 893, paras 13-31. Back
276
R v Roy Clarke [2008] EWCA Crim 893, para 19 (citing Lord
Hope) Back
277
Ibid, paras 20-21. Back
278
See Jespers v Belgium App No 8403/78, 27 DR 61, para 54 for
guidance on the equality of arms in a criminal trial. Back
279
Article 6(3)(d). Back
280
Bricmont v Belgium (1990) 12 EHRR 217 Back
281
See for example Unterpertinger v Austria (1991) 13 EHRR 175. Back
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