Stephen Silber QC reveals the reasoning behind the Law Commission's proposals for a modern statute to replace existing corruption law. Stephen Silber QC is a law commissioner.
Everybody agrees that everything possible should be done in order to try to stamp out corruption because it strikes at the root of all aspects of life in a democracy.
Unfortunately, the English law of corruption has many defects. It is drawn from at least 12 statutes, including many overlapping common law offences.
The problems are illustrated by the uncertainty on the important issue of the precise mental element that has to be proved before a person can be found guilty of corruption; the law on much of this has been described as being in “impressive disarray”.
The Law Commission was asked to look at the law of corruption in response to calls from two important committees: the Salmon Royal Commission and the Committee on Standards in Public Life.
After considering the many thoughtful and useful responses to the consultation paper, the Law Commission formulated its policy and published its report in March with a draft bill attached.
The Law of Corruption seeks to address the problems of a person being encouraged to act in breach of duty by means of a reward. The commission began its analysis of corruption in terms of an “agent” being tempted by bribery to betray the trust owed to his or her principal, using the concept of “agent” in a broad sense of someone who has agreed to perform functions for another person – the agent's “principal”.
It then extended the analysis to include those who have been entrusted to perform a function not for an identifiable principal but for the public, whether the public of the UK or elsewhere. Significantly, this would enable this country to comply with the Organisation for Economic Co- operation and Development's recent convention.
The commission's recommendations are to replace the existing corruption offences with a modern statute creating four offences:
corruptly conferring, or offering or agreeing to confer, an advantage;
corruptly obtaining, soliciting or agreeing to obtain an advantage;
corrupt performance by an agent of his or her functions as an agent; and
receipt by an agent of a benefit which consists of, or is derived from, an advantage which the agent knows or believes to have been corruptly obtained.
The third and fourth of these offences represent a strengthening of the law. At present, an agent commits an offence by accepting a corrupt bribe or reward.
This seems illogical. What makes bribery wrong is that it tempts an agent to betray his or her principal's trust; yet, while the acceptance of the bribe is an offence, the betrayal itself is not.
At present, prosecutions sometimes fail because there is evidence that an agent acted in breach of his or her duty, but not that a bribe or reward was paid or even agreed.
Under the commission's recommendations it would be sufficient to prove that the agent's conduct was motivated by the hope of a corrupt reward, whether or not there was any agreement to that effect.
Again, it is not clear at present whether an agent commits an offence by accepting part of a bribe paid to a third party in return for favour to be shown by the agent. This would be an offence under the commission's recommendations.
Central to all these offences is the concept of doing something “corruptly”. This word is used in the existing legislation but it is not defined and, as has been shown, its precise meaning is unclear.
The commission thinks that it should be defined, and has therefore attempted to analyse what it means.
Its conclusion is that the essence of corruption lies in the influencing of an “agent” (that is, a person who has agreed to perform functions for another person – the agent's principal – or for the public) to perform those functions in a certain way, and to do so in return (or at least primarily in return) for the conferring of an advantage on the agent or a third party.
Thus the commission recommends that a person who confers an advantage should be regarded as doing so corruptly if he or she intends a person, in performing his or her functions as an agent, to do an act or make an omission, and he or she believes that, if that person did so, it would probably be primarily in return for the conferring of the advantage.
The concept of corruption in the other offences that the commission recommended would build on the concept of corruptly conferring an advantage.
For example, the commission recommended that a person who obtains an advantage should be regarded as obtaining it corruptly if he or she knows or believes that the person conferring it confers it corruptly, and he or she either requests it or at least consents to obtaining it.
Read literally, these definitions would include an agent's remuneration by his or her principal (or on behalf of the public), and the commission therefore recommends an express exception for such remuneration.
It also recommends a further exception for the case where the agent's principal knows all the material circumstances and consents to what is done.
Those with whom the commission consulted agreed with its provisional view that there should be no distinction between public and non-public bodies.
It was agreed that it is not desirable to have different standards and it is recommended that this distinction should be abolished.
The Government is now considering these proposals, which are available from the Stationery Office and on the Internet at: http://www.open.gov. uk.comm/.