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The Jersey Law Review – February 2006

MISCELLANY

BRIBERY AND CORRUPTION

1       As Edmund Burke wrote more than two centuries ago, “Among a people generally corrupt, liberty cannot long exist”.[1] Many examples of the truth of that aphorism can be found in different parts of the world where corruption is endemic. Although corruption has a history as old as man, a universally accepted definition of a corrupt practice is rather more elusive. What might in one place be regarded with abhorrence was viewed in another as permissible. In Europe, Napoleon’s Code Pénal of 1810[2] may fairly be regarded as a significant landmark in the proscription of corruption in public life. In England a number of statutes were enacted during the 19^th and early 20^th centuries, notably the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906. The rapid spread of corrupt practices in the third world and elsewhere during the last 30 years has led international organisations to turn their attention to the problem.

2       In 1997 the OECD adopted the Convention on combating bribery of foreign officials in international business transactions. In 1999 the Council of Europe adopted the Criminal Law Convention on Corruption. In 2003 the General Assembly of the United Nations adopted the UN Convention against Corruption. The difficulty of finding a common definition of corruption is well illustrated by the different approaches of these international organisations. The UN targets “illicit payments”, the OECD targets the “bribery of foreign public officials”, and the Council of Europe concentrates, not unnaturally perhaps, on “corruption involving officials of the European Communities or officials of Member States of the European Union”.

3       In Jersey bribery has been an offence at customary law, although prosecutions have been infrequent and the precise ambit of the offence might be said to be unclear. When examined by the Royal Commissioners in 1846 Advocate John Hammond could recall no instance where a judicial officer had been indicted for bribery.[3] In 1945 Mrs Langtry was charged with the offence by offering to bribe the Chief Aliens Officer with money in exchange for a permit to travel to England.[4] The customary law offence and the existing statutory offences relating to States members[5] have now been abolished by the Corruption (Jersey) Law 2005 (“ the Corruption Law”),[6] the broad purposes of which are to create new offences of corruption and to enable the extension to Jersey of the OECD and Council of Europe Conventions.

4       The principal new offences are contained in articles 5 and 6 dealing with corruption concerning a public body and corrupt transactions with agents respectively. Article 5 provides-

“   (1) It shall be an offence for a person, whether alone or in conjunction with another person, corruptly to –

(a)     solicit or receive or agree to receive, whether for his or her own benefit or for the benefit of any other person; or

(b)     give, promise or offer to any person, whether for the benefit of that person or any other person, any advantage as an inducement to or reward for, or otherwise on account of, any member, officer or employee of a public body doing, or not doing, anything in respect of any matter or transaction whatsoever, whether actual or proposed, in which that public body is concerned.”

The new maximum penalty is 10 years’ imprisonment and a fine.

5       Article 6, which is in very similar terms, makes it an offence for an agent corruptly to engage in any of the above transactions to the prejudice of the agent’s principal. “Agent” is widely defined to include a person employed by or on behalf of another person, a public official, an auditor and a juror. It also includes a member of a foreign government or parliament, members of the European Parliament, the court of Auditors of the European Communities, the Commission of the European Communities and other foreign public functionaries. It is this article which criminalizes the receipt or offering etc. of bribes in the private sector. If, therefore, an employee of an insurance company received a bribe of £1000 or some other inducement to deal favourably with a particular claim against the company, the employee would commit an offence under article 6.

6       The drafting appears to be modelled, (although much simpler and a great improvement), upon section 1 of the Public Bodies Corrupt Practices Act 1889. It may be permissible therefore to look at English authority to see how English courts have interpreted the Act. “Corruptly” has been held to mean not “dishonestly” but purposely doing an act which the law forbids as tending to corrupt.[7] It means deliberately offering money or other favours with the intention that the offer should operate upon the mind of the offeree so as to induce him to enter into a corrupt bargain. It is not necessary to prove that the defendant did actually show favour as a result of receiving the gift; it is sufficient to show that the gift was received as an inducement to show such favour.[8]

7       The Corruption Law adds to the list of offences where a person can be tried in Jersey for offences committed outside the jurisdiction if he is a British citizen resident in Jersey and the act done would have constituted an offence if committed in Jersey.[9] Jurisdiction is also conferred on the Jersey courts if some of the acts alleged to constitute the offence were committed in Jersey notwithstanding that other acts were committed outside.

8       When the law has been sanctioned and registered it is intended to seek the extension of the UK’s ratification of the OECD and Council of Europe Conventions to Jersey.

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