Public Law

We’ve blogged, talked and written about it, but ahead of the Bribery Act 2010 coming into force the recent English case R v Matthew Webster poses an interesting question in respect of the current law and maybe one for the future too.

The Bribery Act does not have retrospective effect. So investigations into historic acts of corruption will continue to be prosecuted in accordance with the law pre Bribery Act – potentially long after April 2011.

The old (or should that be current law, this is getting confusing) involves a combination of statutes, two of which are The Public Bodies Corrupt Practices Act 1889 and The Prevention of Corruption Act 1916. So, we really are dealing with “old” law then.

R v Webster was an appeal against a conviction under section 1(2) of the 1889 Act. Webster was convicted of giving a gift of £100 cash to a local authority employee. The employee processed many of the orders placed by the local authority with Webster. The conviction indicates that the court considered that the “gift” was essentially a bribe.

Section 2 of the 1916 Act added a reverse burden of proof to the offence, meaning it was for Webster to prove he had not intended the gift to be a bribe, rather than for the prosecution to establish that the gift was a bribe. Webster successfully argued that this was an unreasonable interference with the presumption of innocence and the right to a fair trial protected under Article 6 (2) of the European Convention on Human Rights.

Section 3 of the Human Rights Act 1998 allows a court to “read down” legislation to make it compliant with the European Convention. Webster asked the court to read down section 2 of the 1916 Act to place only an evidential burden on him rather than a legal one. The legal burden in proving the gift was made corruptly would rest with the prosecution.

Parallels can be drawn between the new corporate offence under the Bribery Act and the decision in Webster. The corporate offence imposes liability on commercial organisations for failing to prevent bribery. It is a defence to show they had “adequate procedures in place. As in Webster, the burden of proof lies with the accused. It is for the commercial organisation to show it had adequate procedures in place. The interesting question for the future is whether a court might be persuaded that the corporate offence ought to be read down? If it was, it might arguably be less of a challenge for commercial organisations to avoid prosecution under the new law as it would place the legal burden on the prosecution to show the organisation did not have adequate procedures in place.

In any event organisations should still ensure they review their anti-corruption policies and have those all important “adequate procedures” in place come April 2011. We’ll keep you updated when the UK Government release further guidance on the Bribery Act in the new year.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean