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.[1]


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.[2]


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 (i.e. where the burden to prove innocence is placed on a defendant). However, reverse onus offences must operate within reasonable limits.[3] 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?[4] Courts will also bear in mind the seriousness of the penalty faced by the accused.[5]


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 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 make 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,[6] 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.[7] 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[8] 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.[9] 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

[1] UN Office on Drugs and Crime, Foreword, The UN Convention against Corruption, Kofi Annan, pages iii-iv.

[2] Cm 7570, paragraphs 104-105

[3] 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.

[4] R v Roy Clarke [2008] EWCA Crim 893, para 19 (citing Lord Hope)

[5] Ibid, paras 20 - 21.

[6] See Jespers v Belgium App No 8403/78, 27 DR 61, para 54 for guidance on the equality of arms in a criminal trial.

[7] Article 6(3)(d).

[8] Bricmont v Belgium (1990) 12 EHRR 217

[9] See for example Unterpertinger v Austria (1991) 13 EHRR 175.