The control of corruption
| Date | 01 October 2004 |
| DOI | https://doi.org/10.1108/13590790410809257 |
| Published date | 01 October 2004 |
| Pages | 316-321 |
| Author | G. Scanlan |
| Subject Matter | Accounting & finance |
Journal of Financial Crime Ð Vol. 11 No. 4
ANALYSIS
The Control of Corruption
G. Scanlan
INTRODUCTION
The sanctions, apart from a custodial sentence, which
may be imposed on those individuals and parties who
have committed, or are parties to, acts of `corruption'
seem impressive. For 15 years there has been ever-
widening power to con®scate the proceeds of crime,
culminating in the Proceeds of Crime Act 2002. In a
paper in the Journal of Financial Crime by Michael C.
Blanch¯ower, the author examines the question as to
where the proceeds of corruption go.
1
The paper
quotes the then Secretary of State for International
Development, who stated: `I welcome the initiative
taken by the Society for Advanced Legal Studies to
study this further. I hope this will lead to a wide discus-
sion about the contribution the ®nancial and legal pro-
fessionscan make toreducing thescope for corrup tion.'
The author noted there was no mention about govern-
ment action, a rather signi®cant omission.
2
It is nevertheless obvious that corruption is
regarded by the authorities throughout the world as
an evil that must be combated with all the resources
and resolve possessed by the state and by international
authorities. However, the statement of the author in
his paper that `Corruption is no dierent from other
crimes that generate ®nancial gain' needs to be con-
sidered in the context of what are the constituent ele-
ments in a crime of corruption. In English law there is
no general oence of corruption per se. Does the
statement above support the view that it is time to
consider the creation of a generic oence of
corruption?
A CONCEPT OF CORRUPTION
Although there is frequent reference to the crime of
fraud in both the press and (on occasion) the literature
of the law, in reality there is no such oence in
English law. It has been argued
3
that the concept
of fraud, at least in English law, is commensurate
with the concept of dishonesty. In these cases oences
such as conspiracy to defraud, or the proposed oence
of fraud as set out in the draft bill as an appendix to
the Law Commission Report on Fraud No. 276,
ful®l, at least in part in the case of the oence of con-
spiracy to defraud, or would, in the case of the pro-
posed oence of fraud be capable of ful®lling the
role of a general oence of fraud.
4
In the case of the
oence of conspiracy to defraud, the recognition of
a general crime of fraud is by de®nition limited to
an inchoate form. Only the proposed oence of
fraud would ful®l the role of a generic wide-
ranging oence. Can the law, and in this regard, con-
sideration is limited to English law, formulate an
equivalent general oence of corruption?
5
THE PRESENT ROLE OF CORRUPTION
IN ENGLISH CRIMINAL LAW
A review of Archbold
6
will show a number of
oences in which corruption is a de®ning element.
The position at common law
At common law by virtue of the case of R v Whitaker
[1914] 3 KB 1283, 10 Cr. App. R 245, it was held that
where a person holds a position of trustee to perform
a public duty, and takes a bribe to act corruptly in dis-
charging that duty, an oence is committed by both
parties. Accordingly, at common law the oence of
corruption (as proscribed by Whitaker) is inextricably
linked with bribery, and perhaps should more accu-
rately be de®ned as an oence of bribery and corrup-
tion. What is a corrupt act for the purposes of the
above oence, however, is still not de®ned by this
case. In the earlier case of Cooper v Slade (1857) 6
HL 746, the concept of corruption was de®ned as
not requiring the act to be carried out dishonestly,
7
but corruptly, that is purposely doing an act which
the law forbids as tending to corrupt. This is hardly
helpful, apart from determining that corrupt and dis-
honest are not coterminous concepts; to de®ne cor-
ruption as an act which tends to corrupt is clearly
circular.
8
Perhaps the concept of corruption is
rather like the nature and appearance of the elephant:
everyone knows (or thinks they know) what it is, but
Page 316
Journal of Financial Crime
Vol.11,No. 4, 2004,pp.316±321
#HenryStewart Publications
ISSN 1359-0790
To continue reading
Request your trial