Formulating a New Offence of Bribery — Catching the Chimera
| Pages | 45-49 |
| DOI | https://doi.org/10.1108/eb025860 |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| Author | Tom Williams |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 6 No. 1 — Bribery
BRIEFINGS
BRIBERY
Formulating a New Offence of Bribery — Catching
the Chimera
Tom Williams
'Corruption, the most infallible symptom of
democratic liberty' (Gibbon, 'The Decline and
Fall of the Roman Empire', Ch. 6)
Corruption has plagued civilised society since its
inception. Backed by man's ingenuity, it has reared
its ugly head in many different guises throughout
the ages. It is this ability of corruption to change
its form and appearance that makes it such an
elusive concept to trap within the confines of the
criminal law.
Thus the Law Commission had a considerable
job to do when the government, on the recom-
mendation of the Select Committee on Standards
in Public Life, handed to it the task of reviewing
the law relating to bribery. The Commission pub-
lished first Consultation Paper No. 1451 and then
on 2nd March, 1998, Report No.
248.2
This article is a brief examination of the four
proposed new offences of bribery. It considered
first to whom they apply and the way in which
they interrelate. It goes on to highlight the
inherent contradictions in the Report and then to
consider the wider issues raised by the creation of
the new offences and their attendant problems,
namely the unwanted distinction between public
and private sector corruption, the divergence of
criminal and civil law.
CONFUSION IN THE PRESENT LAW
The Commission's first observation was that the
existing law is very unsatisfactory. The present law
of corruption spans some 11 statutes, the principal
Acts being those in 1889,3 19064 and 19165. The
legislation on corruption has developed in a
sporadic and piecemean fashion in response to per-
ceived crises. In the words of the Commission
'reviews ... have been largely prompted by external
events highlighting shortcomings in the law'.6
The 1998 Act7 dealt with local public bodies
only until extended to public authorities of all
descriptions by s.4(2) of the 1916 Act.8 The 1906
ct9 is concerned with the corruption of agents in
both the public and private sector. Section 2 of the
1916 Act imposes a presumption of corruption on
employees involved in the issuing of contracts in
public bodies. All three Acts use the word 'cor-
ruptly' where the definition is uncertain. Further
uncertainty is created by the distinction between
public and private bodies and even more by the
vagaries of two whom the Acts apply.
THE NEW OFFENCES
The Law Commission made the following recom-
mendations:
An offence is committed where
1.
a person
(i) corruptly confers an advantage, or
(ii) corruptly offers or agrees to confer, an
advantage.10
2.
a person
(i) corruptly obtains an advantage, or
(ii) corruptly solicits or agrees to obtain an
advantage.11
3.
a person performs his functions as agent cor-
ruptly.12
4.
(i) an advantage is obtained corruptly by a
person other than the agent concerned,
(ii) the agent receives a benefit (in any form)
which consists of or is derived (directly
or indirectly) from all or part of that
advantage,
(iii) the agent knows or believes that the
advantage was obtained corruptly and
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