22 November 2006 George Brown
It is generally accepted that UK laws regulating corrupt activity must be brought up to date. George Brown, a partner in the European Litigation Group of Reed Smith, explains how the UK Government is resolving this issue.
The UK's corrupt activity regulation laws are in need of updating and there is concern on the international stage that the UK has not allocated sufficient resources to deal with corruption overseas. The UK Government is addressing both of these issues, but progress is painfully slow.
THE EXISTING LAW
The laws dealing with corrupt activity in the UK are to be found in the common law offence of bribery and in three Acts of Parliament, namely the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Acts of 1906 and 1916.
The common law offence of bribery has been around for a very long time. In 1765 bribery was an offence that was limited to the receiving or offering of undue rewards to a judge or other person connected with the administration of justice.
Over the years, the offence has 'evolved' and bribery is now the receiving or offering of any undue reward by or to any person in public office in order to influence that person to act contrary to the rules of honesty and integrity.
The 1889, 1906 and 1916 acts make corrupt activity in both the public and private sectors a criminal offence. The 1916 act includes reversal of the normal presumption of innocence so that where a payment is made to an employee of a public body it is for the defence to prove that the payment was not illegal.
CONTROL OF CORRUPTION OVERSEAS
The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions came into force in February 1999.
The provisions in sections 108-110 of the Anti-terrorism, Crime and Security Act of 2001 were included to ensure that the UK complied with its convention obligations, and extended the law (except for the reverse presumption of guilt contained in the 1916 act) to apply to the corrupt activities of any UK national or UK company, no matter where in the world those activities took place.
REFORM AND CONSOLIDATION
Over the last ten years the following documents have been produced by the UK Government and Parliament:
- Law Commission consultation paper (1997)
- Law Commission report (1998)
- Home Office white paper (2000)
- Draft bill produced by the Home Office (2003)
- Report of the Joint Committee of Parliament on the draft corruption bill (2003)
- Reply to the Joint Committee of Parliament by the Home Office (2003)
- Home Office consultation paper (2005)
- Private Members corruption bill (2006)
The Home Office's bill fails to provide a clear and comprehensible definition of corruption.
The Joint Committee of Parliament report in 2003 recommended that the definition of corruption in the draft bill be replaced by a more complete and robust definition, which could would better express the essence of corruption. The Home Office responded by engaging in further public consultation, a process that is ongoing.
PRIVATE MEMBERS' BILL
In March 2006 an all-party panel of MPs; who had received advice and assistance from Transparency International (UK) produced a corruption bill.
This bill contained a broad definition of corruption. Further provisions within the bill included a presumption that an offer of a reward to a person employed in the private sector would be deemed to be improper unless evidence was produced to cast doubt over the presumption.
The powers of the director of the Serious Fraud Office (SFO) were to be extended to compel documents to be produced when investigating foreign bribery. It also contained other offences, including one dealing with foreign bid rigging and another dealing with corruption in sport.
The bill was scheduled to receive a second reading in October 2006. This second reading has not taken place and one can only presume that the bill has been dropped, as is the fate of the majority of private members' bills.
ENFORCEMENT OF PROVISIONS
The OECD Convention requires not only that the UK has in place the necessary laws but also that those laws are correctly implemented and applied. An OECD working group produced a report looking at the UK's implementation of its convention obligations.
One of the recommendations was that effective mechanisms be put in place for the investigation and prosecution of offences of bribery of foreign public officials that took place overseas. The report also contained comment on the difficulty of convicting a corporate entity of a crime.
Another recommendation in the report was that the role of the SFO be properly standardised. Since April 2004 the SFO has taken a leading role in the investigation of corruption overseas. It is entirely logical that the role of the SFO should be properly defined in the legislation that created it and controls its activities.
Funds have now been made available by the Department of International Development to set up an investigation team that will work closely with the SFO. This team will focus on investigating allegations of bribery overseas involving UK nationals and companies.
The report also records concerns that there have been no prosecutions of any UK person or company for involvement in corruption overseas. The UK Government has stated that it anticipated very few prosecutions for corruption committed abroad, perhaps no more than one or two a year.
Although no-one has been prosecuted under the provisions contained in the 2001 Anti-terrorism, Crime and Security Act, in 2005 Hector Williamson (a former manager at the Royal Mint) appeared in court on a charge that, together with an official of the Central Bank of Gambia, he had allegedly taken money to the value of approximately £38,000 produced by the Royal Mint for Gambia. He was acquitted.
Reform of the law on corruption moves painfully slowly. The government's recent response to criticism indicates, however, that UK laws preventing corruption, both at home and abroad, will be reformed and consolidated, and that UK nationals and companies are more likely in the future to be pursued for corruption overseas.