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Bribery Bill [HL]

My Lords, I shall speak also to Amendment 2. The Minister will be pleased to know that Amendments 1 and 2 are probing amendments, because I have got them wrong from a technical point of view. However, my technical error helps to highlight a problem with, and flaw in, the Bill. I support the Bill and hope that it will find its way onto the statute book; but the flaw is that the serious offences of bribery and corruption, which we have known for hundreds of years and which have been statutory for more than 100 years, do not in the Bill involve the need to establish the mens rea, or guilty mind, of the accused. The amendments to Clause 4—on page 3, lines 10 and 13—state that the offences should be carried out "with corrupt intent" and/or that offenders should demonstrate "corrupt intent". The error in my reading is that unfortunately what I have added requires only that there should be corrupt intent on the part of the recipient, who in practice will be the demander of the bribe. However, I am particularly concerned about certain circumstances arising. Of course, those circumstances do not always apply because, by the time most bribery and corruption cases come to trial, there is a good, strong case against the accused and juries have no difficulty, and certainly no reluctance, in finding people guilty of bribery or corruption if the facts warrant it. The problem with bribery and corruption cases is not that juries are reluctant to convict but that the activities that lead to these cases happen in the shadows, and the great difficulty is in getting the evidence in the first place. For many years when I was a law officer, I was responsible for overall prosecution in this area and for giving authority to prosecute under the existing law. In my experience, once the evidence is there, a jury is not reluctant to convict. An example used in Committee by my noble and learned friend Lord Mackay of Clashfern begins to show the kind of circumstance in which a jury might have doubt about whether the "giver" of the bribe—I use the word carefully because he is not necessarily the inducer of the bribe—really has a guilty mind. Over my 40 years of experience at the Bar, particularly in the early days when I did more criminal work, sadly I came across cases of corruption in the police. Although one hopes that it will not happen in this country, one can never be quite sure, and practically every Member of this House will remember that Sir Robert Mark was brought in to clear up a certain amount of unsatisfactory and corrupt behaviour among the Soho police. However, the hypothetical example that I give is of someone who has bought an aeroplane ticket. He arrives at the gate and is asked for a bribe in order to get his boarding pass. He is absolutely entitled to get the pass—he has paid for it and would expect to get it as a matter of course—but he finds that he cannot get on to the aircraft without handing over a bribe. He has a choice. He can say to the chap who is demanding the bribe, "This is utterly wrong. You shouldn’t do it. If you won’t let me on to the aircraft I shall go and report you at once", or he can pay over the money demanded, get on to the aircraft and, one hopes, report the person when he lands, or perhaps even report the person to the cabin crew. Once again, I express my thanks to Mr Colin Nicholls QC, a great expert in this area who has written the leading academic work and practical guidance on the subject. He certainly helped to clarify my mind on this. The difficulty is that under the Bill as drafted the offence is committed by the payer of the bribe—the person from whom the bribe has been wrongly and corruptly demanded by the official standing at the boarding gate. Simply by handing over the money, he is giving the bribe. Of course, it would depend on the detailed facts of a case but I think that, if the Bill were drafted so as to require a guilty mind, a jury would be very reluctant to convict someone in those circumstances. On the wording of the statute the jury would be obliged to convict, although it may be reluctant to do so as juries do not like a sense of injustice in any event. I ask the Minister to focus on that and to consider whether he accepts that the wording means that in those very difficult circumstances when someone hands over the money and pays the bribe, he could be guilty of an offence. The person’s protection—this is how the Government have put it so far—lies in the sensible discretion of the prosecutor not to prosecute in those circumstances as there would be strong mitigation. I am not happy to put on to the statute book criminal law that makes someone a criminal without a guilty mind. Of course, we have a large number of absolute offences but this is not an area in which there should be an absolute offence. I had hoped to add the words "corrupt intent" to some of the early clauses, particularly to Clauses 4 and 5 which refer to relevant expectations. I wanted to make it clear that a relevant expectation was that somebody should act corruptly. In the example that I gave it is perfectly obvious that the official at the boarding point who demanded the bribe for the boarding card was acting corruptly. There can be no doubt about that, but there is serious doubt about whether the person who handed over the bribe was acting corruptly. There could be all sorts of circumstances that could be mitigating factors or otherwise. The person has to get home, he may be seriously disrupted and it would involve expense to stay overnight. There could be more heart-rending circumstances such as trying to get home to help his wife with a sick child, and so on. One need not go into the detail. The point is whether or not they are acting corruptly. The present law requires a guilty mind. The word "corruption" has been much criticised in academic circles but it is a requirement at common law and all forms of this offence to date. It is a requirement in every common law jurisdiction in the world with the possible exception of one state in Australia which uses the word "impropriety", but I have not studied the exact wording for the state of Victoria. In Canada, Australia, South Africa, New Zealand and the United States there is a requirement for a guilty mind. We are proposing to put on the statute book a law that does not necessarily demonstrate a guilty mind. It often will and one would hope that the accused would be convicted, but it could cause a conviction in circumstances when there will not be a guilty mind. The Government have two answers. It will either be a matter for prosecutorial discretion or it will be a matter for government guidance. Perhaps the Minister will clarify this point. I do not think that he intends to give guidance in this area, but if he does it will be useful to know. The Bill will go on to the other place soon where these matters can be further considered. At the moment, it is said that we can safely leave this to the prosecutor. I have great respect for prosecutors, but I am not happy to leave things to them. It is sometimes forgotten that there are two requirements before one can prosecute in any case. First, one has to be satisfied that there is sufficient credible evidence that will give rise to a reasonable prospect that a jury, properly directed, will convict—sometimes called the 51 per cent test. I very much doubt whether the example that I have posited—I take it from my noble and learned friend—would give rise to a jury convicting, so one would not get to the second test, which is the public interest test. I do not think that it is safe to leave this to the public interest test. Just as we have a strong belief in the jury system, so the jury system works back and gives confidence to our prosecutorial system. It is a very good discipline for a prosecutor to say to himself or herself, "Would a jury convict here? Is it really likely, more likely than not, that a jury will convict?" Yet, we could have convictions here in circumstances where a jury would not convict. I should have thought—this is probably my mistake—that it would have been "a relevant expectation", in the words of the clauses, that a jury would convict only in circumstances where there was a guilty mind, where the jury was satisfied that the person was acting "dishonestly", to use another controversial word in this area. We have drafted a law where that is not the case. I am attempting to ameliorate that. I think I should be told that I would fail because "relevant expectation" relates to the recipient of the bribe, not to the giver of the bribe. If I am wrong on that, I am very happy, because my amendment could do the business, but I probe the matter with care and look forward, as always, to the careful explanation that I am sure that the Minister will give.