Annex: advice to the Committee from Christopher
Sallon QC
In the Matter of the Law of Corruption
_______________________________
ADVICE
______________________________
1. I am asked to advise the Public Administration
Select Committee "the Committee" which is currently
considering issues of Propriety and Ethics in Public Life in the
context of the recent "Cash for Honours" scandal. In
particular, I am asked to consider:
1.1 Whether the current law prohibiting the sale
of honours is framed in a way which makes it extremely difficult
to bring about successful prosecutions?
1.2 Whether the sale of honours is theoretically
caught by the wider law of corruption?
1.3 In the light of the above, whether the law
of corruption needs to be reformed?
1.4 Whether, by ordinary legal means (i.e. ignoring
any inherent parliamentary power or procedure) the Committee
can gain access to papers and information in the police's possession
as a result of their recent inquiry?
2. In summary, my advice is that:
2.1 The law prohibiting the sale of honours creates
evidential difficulties, and is therefore difficult to apply.
In particular, it is difficult for prosecutors to prove the existence
of an agreement to provide an honour in exchange for a reward.
2.2 Whilst the sale of honours is theoretically
caught by some aspects of the wider law of corruption, none of
the common law or statutory offences offers a precise fit for
the facts of the "Cash for Honours" controversy.
2.3 Reform and rationalisation of the laws of
corruption are required. However, there remains the risk that
such reforms will be unlikely to overcome the evidential and practical
problems that face prosecutions of high-profile, political scandals.
2.4 Any attempt by the Committee to gain access
to papers and information held by the police by ordinary legal
means is unlikely to be successful.
3. My reasoning appears in the body of this Advice
below.
A) Factual Background
4. On 5 May 2005, the Labour Party won a general
election. It is widely agreed that the election campaign involved
a high level of expenditure by the main political parties. About
a month later, Downing Street officials began work on the preparation
of a list of suitable candidates for nomination as Labour working
peers.
5. Throughout the summer of 2005, Downing Street
officials prepared a series of drafts of a list of suitable candidates
for nomination as Labour working peers.[154]
The final list (which included candidates proposed by other political
parties) was sent for scrutiny to the House of Lords Appointments
Commission "HoLAC" in early October 2005.[155]
6. Shortly afterwards, reports began to appear
in the press that some of the
7. Labour Party nominees had made "secret"
loans to the Party, which had not been disclosed to HoLAC[156].
On or around 20 March 2006, the Labour Party published the names
of the individuals from whom the Party had received loans[157].
The individuals included four of the nominees who appeared on
the list submitted to HoLAC.
8. The official investigation into "Cash
for Honours" commenced in March 2006, following a complaint
made by the Scottish National Party MP, Mr Angus McNeil, that
laws regarding the sale of honours had been broken by the Labour
party giving peerages in return for donations and loans. The
investigation was carried out by a team of the Metropolitan Police
led by Assistant Commissioner John Yates.
9. On 13th April 2006, Mr Des Smith,
who until January 2006 had been an adviser to the body that finds
wealthy sponsors for the government's city academies program,
was arrested. Reports allege that he had suggested that backers
of a flagship Labour schools policy could expect to be rewarded
with honours. On 12th July 2006, Lord Levy was arrested
for the first time. He was later re-interviewed and re-bailed
without charge. On 20th September 2006, Sir Christopher
Evans, a businessman who had made a £1m loan to Labour, became
the third person to be arrested. He was bailed without charge,
and insisted that he was innocent. Over the following months,
the police arrested and/or interviewed a series of senior politicians
and political aides, including former prime minister Mr Tony Blair
on two separate occasions.
10. The Crown Prosecution Service ["CPS"]
assisted the police with their enquiries from the beginning of
the investigation. Following a series of discussions with the
CPS, the police submitted their final submission of evidence on
2 July 2007[158].
11. In February 2007, the CPS announced that
Mr Smith would not face charges. On 20th July 2007,
the CPS confirmed that it had insufficient evidence to charge
anyone in the case.[159]
B) The Current Law on the Sale of Honours
i) Honours (Prevention of Abuses) Act 1925
12. Section 1 of the 1925 Act creates the following
two offences:
(1) If any person accepts or obtains or agrees to
accept or attempts to obtain from any person, for himself or for
any other person, or for any purpose, any gift, money or valuable
consideration as an inducement or reward for procuring or assisting
or endeavouring to procure the grant of a dignity or title of
honour to any person, or otherwise in connection with such a grant,
he shall be guilty of an offence.
(2) If any person gives, or agrees or proposes to
give, or offers to any person any gift, money or valuable consideration
as an inducement or reward for procuring or assisting or endeavouring
to procure the grant of a dignity or title of honour to any person,
or otherwise in connection with such a grant, he shall be guilty
of an offence.
13. The penalties under the 1925 Act are imprisonment
for a term not exceeding two years, or an unlimited fine, or both.
14. In R v Braithwaite [1983] 2 All ER 87, [1983]
1 WLR 385, the Court of Appeal considered the meaning of "valuable
consideration" for the purposes of s.1 of the Prevention
of Corruption Act 1906. At 92, Lord Lane CJ held that the "classic
definition" in Currie v Misa (1875) LR 10 Exch 153 at 162
should be applied:
"A valuable consideration, in the sense of the
law, may consist either in some right, interest, profit, or benefit
accruing to the one party, or some forbearance, detriment, loss,
or responsibility, given, suffered, or undertaken by the other
… "
15. It follows that a loan is likely to fall
into the category of "any gift, money or valuable consideration"
for the purposes of s.1 of the 1925 Act. As a short-term transfer
of money, a loan could be considered as "money" (which
is undefined in the 1925 Act). It is also likely to fall into
the category of "valuable consideration", as the person
making the loan forbears from re-paying his money for a period
of time, and suffers a short-term detriment of loss. The person
receiving the loan gains a short-term right, interest or benefit
from it. It is my opinion therefore that the 1925 Act is sufficiently
flexible to cover the receipt of gifts, cash, or the making of
a loan.
16. As the CPS made clear in their final decision,
at paragraph 23, in order to establish liability under the 1925
Act, it would be necessary for the police to show either that:
16.1 an offer of a loan in exchange for an honour,
was either made or sought by one person to or from another, even
if that other person subsequently refused either to accept or
to make such an offer; or,
16.2 one person agreed with another to make/accept
a loan in exchange for an honour. The loan must have been made
or accepted as an inducement or reward for the honour. The use
of the term "consideration" implies that a bargain must
have been struck.
17. This places a high evidential burden on the
prosecution, who will, in practice, have to prove the terms of
deals that are made in respect of loans. There must be an agreement
between the parties. Merely hoping to receive an honour in exchange
for making a loan is not enough to constitute an offence. Even
where one individual 'A' decides to award an honour to another
'B', and when doing so, takes into consideration the fact that
B made a loan, this is still not enough to constitute an offence.
The link between the offer of the loan and the award of an honour
must be explicit.
18. It is clear that it is difficult to prove
these ingredients to the requisite criminal standard, especially
in the absence of any direct evidence of an offer of a loan being
made or solicited in exchange for an honour. Strong, circumstantial
evidence will therefore be required for a successful prosecution,
suggesting that the terms of any loan offer or agreement were
kept hidden or secret, suggesting that the people making or receiving
a loan discussed the receipt of honours or suggesting a large
overlap in timing between individuals making loans and receiving
honours. Even if the police can find such evidence, they will
still need to effectively discount any credible, innocent explanation
for loans being made (for example, an act of personal generosity,
or a purely politically motivated act, or for honours being awarded
where say, the individual in question was a credible candidate
for an honour, regardless of the fact that he or she had made
a financial contribution to a political party).
19. Finally, under the Code for Crown Prosecutors,
the CPS will then need to consider how reliable the evidence is,
whether all the evidence can be relied on at court and whether
there are concerns over the accuracy or credibility of any witnesses,
in order to have a realistic prospect of conviction. I believe
this is currently expressed in percentage terms as over 50%.
ii) Political Parties, Elections and Referendums
Act 2000
20. The 2000 Act formed a part of the constitutional
reform programme implemented by the 1997 Labour Government, and
it largely followed the recommendations of the Neill Committee
on Standards in Public Life[160].
It introduced a series of controls on political party registration
and finances.
21. Part IV of the Act makes provisions for the
control of donations to registered parties and their members.
At the material times, s.50(2) defined "donation" in
relation to a registered party for the purposes of Part IV of
the 2000 Act as:
(a) any gift to the party of money or other property;
(b) any sponsorship provided in relation to the party
(as defined by section 51);
(c) any subscription or other fee paid for affiliation
to, or membership of, the party;
(d) any money spent (otherwise than by or on behalf
of the party) in paying any expenses incurred directly or indirectly
by the party;
(e) any money lent to the party otherwise than on
commercial terms.
22. It is clear therefore, that any loan which
could properly be characterised as commercial falls outside the
scope of the 2000 Act. In order for the police to establish liability
under the 2000 Act in respect of any individual involved in the
"Cash for Honours" investigation, they would need effectively
to exclude the possibility that any loans that were made had been
made, in fact, on commercial terms.
23. Section 50(2)(e) of the 2000 Act has since
been repealed by the Electoral Administration Act 2006, s.74,
Schedule 1, Part 7, paras 138 144(1), (2), and Schedule 2. This
removes the loop-hole which brought the loans in the "Cash
for Honours" investigation outside of the scope of the 2000
Act.
C) Additional Laws of Corruption
i) Bribery at Common Law
24. Where a person in the position of trustee
to perform a public duty takes a bribe to act corruptly in discharging
that duty, it is an offence in both parties.[161]
The offer of a bribe is an attempt to bribe, and is also an offence[162].
The purchase and sale of public offices is regarded by the common
law as bribery.[163]
The offence of bribery is punishable by fine and/or imprisonment,
whether the bribe is accepted or not.[164]
25. For the purposes of common law bribery, a
"public officer" is defined as "an officer who
discharges any duty in the discharge of which the public are interested,
more clearly so if he is paid out of a fund provided by the public".[165]
It therefore only arguable that any approach to an official carrying
out a role in the government, such as party political aides like
Lord Levy and Ms Ruth Turner, would be covered by this offence.
In Lord Levy's case, it is unclear if he was an official civil
servant, or even if he was paid for his role. An approach to
these individuals could only constitute common law bribery if
it could be clearly shown that they were public officials.
26. A bribe has been defined as an "undue
reward"[166].
It could be argued that a loan could constitute such a reward,
albeit a reward that is only enjoyed in the short-term.
27. It should, however, be noted that, under
the present law, the offence is limited to the acceptance of a
bribe or reward. Many prosecutions therefore fail, because whilst
there may be evidence that the public official carried out an
act of favour, there is no evidence that a bribe or reward was
actually agreed.
ii) Public Bodies Corrupt Practices Act 1889
28. Section 1 of the 1889 Act, provides:
(1) Every person who shall by himself or by or in
conjunction with any other person, corruptly solicit or receive,
or agree to receive, for himself, or for any other person, any
gift, loan, fee, reward, or advantage whatever as an inducement
to, or reward for, or otherwise on account of any member, officer,
or servant of a public body as in this Act defined, doing or forbearing
to do anything in respect of any matter or transaction whatsoever,
actual or proposed, in which the said public body is concerned,
shall be guilty of an offence.
(2) Every person who shall by himself or by or in
conjunction with any other person corruptly give, promise, or
offer any gift, loan, fee, reward, or advantage whatsoever to
any person, whether for the benefit of that person or of another
person, as an inducement to or reward for or otherwise on account
of any member, officer, or servant of any public body as in this
Act defined, doing or forbearing to do anything in respect of
any matter or transaction whatsoever, actual or proposed, in which
such public body as aforesaid is concerned, shall be guilty of
an offence.
29. The penalties under the 1889 Act are extensive.
They include imprisonment or a fine (or both), as well as an
order to the defendant to pay to a public body the amount, or
value of the gift, loan, fee or reward received. Under s.2, the
Court may also disqualify the Defendant from public office or
order his or her forfeiture of office.
30. The bribe must take the form of "a gift,
loan, fee, reward, or advantage". It follows that the receipt
of a loan is explicitly covered by the 1889 Act. However, under
the 1889 Act, the "advantage" paid must be connected
to a particular "matter or transaction". While the
definition of "any matter or transaction" is wide enough
to include the grant of an honour, the requirement for the "advantage"
to be made or solicited as an inducement for this particular "matter
or transaction" gives rise to the same problem I have already
identified in relation to the 1925 Act (see paragraph 15.2 above),
namely that it is necessary to prove that the individuals in question
entered into an agreement.
31. The 1889 Act sets no limits on the category
of persons who may be charged with soliciting or receiving a bribe.
It includes in section 7, not only a member, officer or servant
of a public body but also any third party who solicits or receives
a bribe in respect of the conduct of a member, officer or servant
of a public body. This provision might at first blush be thought
to be particularly useful for any investigation into "Cash
for Honours", since it covers not only public representatives,
but also the aides and agents who represent them. However, it
appears from section 7 of the 1889 Act that neither House of Parliament
is a public body for the purposes of the Act. Rather, the definition
of "public body" appears to be focussed on local government
bodies. As a result, it is unlikely that the sale of honours
is caught by the 1889 Act.
iii) Prevention of Corruption Act 1906
32. Section 1(1) provides in part:
"If any agent corruptly accepts or obtains,
or agrees to accept or attempts to obtain, from any person, for
himself or for any other person, any gift or consideration as
an inducement or reward for doing or forbearing to do, or for
having after the passing of this Act done or forborne to do, any
act in relation to his principal's affairs or business, or for
showing or forbearing to show favour or disfavour to any person
in relation to his principal's affairs or business; or
If any person corruptly gives or agrees to give or
offers any gift or consideration to any agent as an inducement
or reward for doing or forbearing to do, or for having after the
passing of this Act done or forborne to do, any act in relation
to his principal's affairs or business, or for showing or forbearing
to show favour or disfavour to any person in relation to his principal's
affairs or business
… he shall be guilty of a misdemeanour."
33. The penalties under the 1906 Act are imprisonment
or a fine or both.
34. The 1906 Act applies to all "agents",
whether in the public or the private sector. "Agent"
is defined at sections 1(2) and (3) as including "any person
employed by or acting for another" and "a person serving
under the Crown" or for "any local or public authority".
The traditional approach to this legislation, however, is that
a Member of Parliament is not an agent for the purposes of the
1906 Act. It is therefore unclear, if someone acting on behalf
of a Member of Parliament could fall into the definition of an
"agent" for the purpose of this Act. In determining
whether a person is "serving under the Crown" however,
the question is not whether he is employed by the Crown but whether
the duties he performs are performed by him on behalf of the Crown[167].
Therefore, while civil servants are likely to fall into this
definition, it is unlikely that party political aides would.
35. The definition of the "bribe" in
the 1906 Act is closer to that in the 1925 Act that that in the
1889 Act. It uses the expression "gift or consideration";
and "consideration" is defined as including "valuable
consideration of any kind". Therefore, as above, it is
submitted that the receipt of a loan could fall into this definition.
36. As under the 1889 Act and the 1925 Act, the
"bribe" must be given or received as a "reward"
or "inducement". However, under the 1906 Act, there
is no requirement to link the "bribe" to an individual
act on the part of the agent, as generally more favourable treatment
will suffice. Once again, this requirement of a link between
the "bribe" and any more favourable treatment raises
the difficulty of proving the fact that the parties entered into
a corrupt agreement.
iv) Prevention of Corruption Act 1916
37. Section 2 of the 1916 Act introduced the
"presumption of corruption" into law. It provides:
"Where in any proceedings against a person for
an offence under the Prevention of Corruption Act 1906, or the
Public Bodies Corrupt Practices Act 1889, it is proved that any
money, gift, or other consideration has been paid or given to
or received by a person in the employment of [Her] Majesty or
any Government Department or a public body by or from a person,
or agent of a person, holding or seeking to obtain a contract
from [Her] Majesty or any Government Department or public body,
the money, gift, or consideration shall be deemed to have been
paid or given and received corruptly as such inducement or reward
as is mentioned in such Act unless the contrary is proved."
38. The onus of proof lies upon the defendant
and the jury should be directed that it may be discharged by evidence
satisfying the jury of the probability of that which the defendant
is called upon to establish.[168]
39. As section 2 makes clear, the "presumption
of corruption" only applies to the employees of government
departments, as defined, and not to members of such bodies (such
as local councillors or Members of Parliament). It is therefore
unclear if this definition will include party political aides
or advisors, especially where such persons hold only voluntary
positions.
40. The second problem is that the 1916 Act applies
only to the issue of obtaining contracts, and not to appointments
to public bodies, such as the award of peerages or the award of
a lesser honour. As a result, though the "presumption of
corruption" provides a useful aide to proving the existence
of an agreement, it is unlikely that it would apply to the facts
of the "Cash for Honours" controversy.
v) Misconduct in the Public Office
41. The ingredients of the common law offence
of misfeasance in the public office were set out by the Court
of Appeal in Att-General's Reference (No. 3 of 2003) [2004] 2
Cr.App.R. 23, CA. At paragraph 61, Pill LJ, giving the judgment
for the Court, stated that an offence is committed when:
41.1 a public officer acting as such;
41.2 wilfully neglects to perform his duty and/or
wilfully misconducts himself;
41.3 to such a degree as to amount to an abuse
of the public's trust in the office holder;
41.4 without reasonable excuse or justification.
42. The receipt of a bribe constitutes misconduct
in the public office.[169]
It follows that the receipt of a loan from an individual on the
understanding that that individual would be rewarded with an honour
is likely to fall into the scope of this offence.
43. As above, the requirement that the misconduct
is carried out by a "public officer acting as such"
raises a difficulty in the context of the "Cash for Honours"
investigation. Many of the individuals who were allegedly involved
were party political aides, and so, may not be considered as "public
officers".
D) Difficulties of Prosecution
44. Whether as a result of the legal and evidential
difficulties referred to above, or for other reasons, statistics
suggest an historical lack of enthusiasm in prosecuting offences
of corruption.
45. On average, 21 people were prosecuted in
each year between 1993 and 2003 under the Prevention of Corruption
Acts referred to above. By comparison on average, some 23,000
defendants were prosecuted each year for fraud between 1997 and
2001[170].
Though these figures may not be entirely accurate, it is clear
that there is a considerable difference between those prosecuted
for public sector corruption and those prosecuted for private
sector fraud.
46. It is also likely that the police and the
CPS adopt a pragmatic approach to prosecuting political representatives.
Though corruption in Parliament has not wholly escaped punishment
in the past, with MPs having been punished by expulsion for accepting
bribes since at least 1667[171],
it is difficult to point to a successful prosecution of a high-profile
political figure in recent years.
47. One of the few examples of an attempted prosecution
of a politician in modern times bears witness to this pragmatic
approach. In 1992, an attempt was made to prosecute a Member
of Parliament for common law bribery, as he had allegedly accepted
bribes from a company in his constituency "to show such favour
as might be within his power as a member of Parliament" to
the company and its directors in relation to their business and
contracts with British Rail. Though the judge ruled that MPs were
subject to the common law offence[172],
the case never came to a full trial as the Crown later offered
no evidence against the MP.
48. Though the Joint Committee on the Draft Corruption
Bill concluded[173],
that it had "received little evidence that any MPs and peers
have avoided prosecution for corruption either because of their
status or because parliamentary proceedings cannot be questioned
in court", it is difficult to avoid a suspicion that a pragmatic
approach has been taken to the prosecution of members of the Executive.
This is illustrated by press reports about the interview of Tony
Blair in relation the "Cash for Honours" investigation.
On 25th June 2007 Channel 4 news reported that the
police had originally asked Mr Blair for an interview under caution,
but that Mr Blair said that this would require him to resign as
Prime Minister. The police then allegedly re-considered and interviewed
him as a witness, rather than as a suspect.[174]
E) Is Reform Necessary?
49. As the above analysis makes clear, the failure
to bring successful prosecutions due to the "Cash for Honours"
controversy only offers further evidence of the need for a modern,
rationalised corruption law. Having considered the current law
in the light of the facts of this investigation, I have seen nothing
to suggest that the Salmon Committee on Standards of Conduct in
Public Life, the Law Commission and the Joint Committee on the
Draft Corruption Bill were incorrect in their conclusions that
wholesale reform of the law of corruption is necessary[175].
50. In particular, the present law of corruption
is drawn from a bewildering array of sources, including overlapping
common law offences and at least 11 statutes[176].
Whilst the "Cash for Honours" allegations potentially
fall into the scope of some of these offences, none of them provides
a precise fit and there are evidential and practical difficulties
with all of them. Each offence applies to different groups of
people. Each offence uses differing definitions of what constitutes
a "bribe". Each offence applies different penalties.
It is therefore clear that rationalisation of the current law
would be helpful.
51. In 1998 the Law Commission published a report
and draft Bill which recommended the creation of four new offences
to replace those in the Prevention of Corruption Acts 1889-1916[177].
In 2000 the Government consulted on the Law Commission's proposals
and in 2003 presented a draft Corruption Bill to the Joint Committee
on the Draft Corruption Bill for pre-legislative scrutiny. The
Joint Committee advised abandoning the Commission's recommendations,
proposing an alternative scheme which the Government then rejected.
In an attempt to build a new consensus, the Government issued
a consultation paper in December 2005. In March 2007 the Government
announced that the outcome of the consultation process was that
there was broad support for reform of the current law but no consensus
as to how it could be best achieved. As a result, the Government
has asked the Law Commission to undertake a thorough review of
the bribery law of England and Wales.[178]
The Law Commission intends to publish an issues paper in November
2007 to be followed by the publication of a final report together
with a draft Bill in autumn 2008.
52. In the light of this long and detailed process
of consultation on legislative reform, it should be made clear
that the suggestions for reform contained in this advice are framed
solely in response to the problems in the current law of corruption
arising from the "Cash for Honours" enquiry. This advice
does not attempt to reach a comprehensive conclusion on the overall
reform of the law of corruption in general, such as may be necessary,
for example, to bring the law of England and Wales into line with
its obligations under relevant international agreements. Such
a conclusion will be provided by the Law Commission in its pending
report.
F) Suggestions for Reform
53. The first recommendation should be a rationalisation
of the definition of public body. The differing definitions of
"public body" in the relevant statutes and common law
offences may have caused problems in the "Cash for Honours"
investigation, in which many of those allegedly involved were
party political aides, and so, may not have been official civil
servants. Moreover, as the controversy caused by the "Cash
for Honours" investigation shows, there is little justification
for keeping Members of Parliament outside the scope of the laws
of corruption[179].
The distinction between public and non-public bodies also causes
difficulties outside the "Cash for Honours" investigation,
due to uncertainty in the Acts as to what constitutes a public
body. Many former public bodies have now been privatised, and
it is uncertain which of them, if any, can still be regarded as
public bodies for the purpose of the relevant offences.
54. There are several ways of putting such a
reform into effect:
54.1 The definition of "public body"
could be rationalised, perhaps by using a definition similar to
that in s.6 Human Rights Act 1998. This would bring the actions
of all civil servants into the scope of the law of corruption,
and provides a useful function-based approach to privatised "public
bodies".
54.2 The approach to agents in some of the corruption
legislation should be applied throughout. Keeping the focus on
a "member, agent or employee" of a public body might
ensure that party political aides are not able to escape liability.
54.3 The unnecessary distinction between public
bodies and others could be simply abandoned.
55. The second suggested reform is to clarify
the concept of the "bribe" itself. Under the present
legislation, the "bribe" is described in many different
ways -as a "gift, loan, fee, reward or advantage" (the
1889 Act), as a "gift or consideration" (the 1906 and
1916 Acts) and as any "gift, money or valuable consideration"
(the 1925 Act). For the purposes of this advice, it has been
presumed that a loan will fall into the wider definition of "money"
or "valuable consideration". However, it is still possible
for a defendant to advance a technical argument that the receipt
of a "loan" falls outside the relevant definitions.
56. The following amendments could be incorporated
into a revised corruption statute:
56.1 The wide definition in the 1889 Act ("gift,
loan, fee, reward or advantage") could be adopted.
56.2 Rather than the narrow and specific legal
definitions of what in current law constitute a "bribe",
a more general term, such as an "advantage" could be
used. The approach suggested by the Law Commission is as follows[180]:
"a person should be regarded as conferring an
advantage if,
(a) he or she does something or omits to do something
which he or she has a right to do, and
(b) the act or omission is done or made in consequence
of another's request (express or implied) or with the result (direct
or indirect) that another benefits."
57. The third suggested reform to the law of
corruption is to clarify the nature of the act carried out as
a result of receiving the "bribe". In the various acts,
definitions vary from the precise (the receipt of honours in the
1925 Act) to the wide (more favourable treatment in the 1906 Act).
In order to ensure greater consistency, the nature of the act
carried out could be defined more broadly, extending perhaps to
"performing functions corruptly". The reference to
the performing of "functions" may be considered to be
sufficiently wide in scope, and has the added advantage of fitting
within the definition of a "public body" as set out
in s.6(3) of the Human Rights Act 1998.
58. However, as noted above, the primary problem
in establishing any corrupt activity is proving to the requisite
standard the intentions of and agreements between the relevant
parties. In the "Cash for Honours" investigation, it
was clear that some of those who had made significant loans to
the Party were subsequently recommended for honours. The primary
problem with the potential prosecution of those involved was showing
the necessary intention and agreement.
59. This problem applies to many of the corruption
offences set out above, particularly as the offence of corruption
is inherently clandestine. Acts of corruption rarely take place
in the presence of witnesses and evidence is rarely recorded.
Considered in this context, it is difficult to argue with the
conclusion of both the Redcliffe-Maud Committee Report and the
Salmon Committee Report that the presumption of corruption in
the 1916 Act, which shifts the burden of proof to the defendant,
should be extended throughout the law of corruption.[181]
60. Under such a presumption, the prosecution
would have to prove to the criminal standard of proof (beyond
reasonable doubt):
60.1 that some "money, gift or other consideration"
was paid or given to, or received by, a "public body"
(as defined above), and
60.2 that the person providing (or the person
whose agent provided it) was holding or seeking to obtain an "advantage"
(as defined above) from that member.
61. It would then fall to the defendant to offer
an innocent justification, which would only need to be proved
to the civil standard (on a balance of probabilities).
62. However, it is submitted that expanding and
strengthening the presumption of corruption would be an infringement
of the presumption of innocence, which is guaranteed in Article
6(2) of the European Convention of Human Rights ["ECHR"]
and given effect by the provisions of the Human Rights Act 1998.
Such a reversal of the burden of proof should be confined within
"reasonable limits which take into account … what is
at stake and maintain the rights of the defence"[182]
and it could only be justified if it relates only to matters which
are difficult for the prosecution to prove because they are peculiarly
within the defendant's own knowledge; if it only creates a rebuttable
presumption of fact and if it is restrictively worded.[183]
63. It may be possible however to argue that
a shift in the presumption of corruption to the defendant is not
incompatible with Article 6(2) guarantees:
63.1 Corruption is an elusive crime which cannot
be proved without information that is purely within the defendant's
own knowledge.[184]
63.2 Empirical evidence as to the level of prosecutions
suggests that it is extremely hard for the Crown to adduce sufficient
evidence to prove corruption.
63.3 Though the presumption of corruption has
been in force since 1916, and (I assume) charges brought since
the implementation of the Human Rights Act 1998, it appears that
it has not been challenged in the European Court of Human Rights[185].
64. However, none of these arguments overcomes
the fact that private sector corruption, in the form of criminal
fraud, is regularly prosecuted without the benefit of the presumption.
Considered in this context, corruption is no more or less difficult
to investigate than other forms of financial crime[186].
This suggests that the phenomenon of under-prosecution on the
part of the police and the CPS might be accounted for by underlying
and more sensitive problems than to genuine evidential difficulties.
For these reasons, it is my opinion that a more robust presumption
of corruption is unlikely to be considered as Human Rights Act
compliant.
G) Access to Papers and Information
65. I am instructed that the Committee seeks
to gain access to any papers and information in the police's possession
as a result of the recent "Cash for Honours" investigation.
Any such request is likely to be considered under the principles
in the Freedom of Information Act 2000 ["FOIA 2000"]
and in the context of the Data Protection Act 1998 ["DPA
1998"]. Whilst these Acts have provided enhanced accountability
from public bodies, they do not provide a guaranteed method of
extracting information.
66. Under s.1 FOIA 2000, any person making a
request for information of a public authority is entitled to be
informed in writing by the public authority whether it holds information
of the description specified in the request, and if so, to have
that information provided to him. "Information" is
defined at s.84 FOIA 2000 as "information recorded in any
form". This means that the Committee could request access
to any written memoranda, photographs, plans, video and sound
recordings and to data held on any computer. An applicant under
FOIA 2000 must describe the information which he or she is seeking
with sufficient particularity to enable to the public authority
receiving the application to be able to identify it.[187]
67. These rights are not confined to "natural
persons", and can also be enforced by bodies enjoying a legal
personality, such as public authorities. The fact that the Committee
might qualify as a "public authority" for the purposes
of the Act[188],
does not prevent it from being an applicant under FOIA 2000.
Under FOIA 2000, the motives of the person seeking the information
are irrelevant.[189]
The Committee is therefore likely to be able to request information,
either in its own name, or in the names of individual members.
68. However, any request for information from
the Metropolitan Police could be refused under the following exemptions:
68.1 Under s.24(2) FOIA 2000, information can
be withheld if this is "required for the purpose of safeguarding
national security". It is highly unlikely that this exemption
will be relied upon, but it could be used to cover personal details
relating to the former Prime Minister.
68.2 Under s.30 FOIA 2000, information held for
the purposes of investigation and proceedings can be withheld.
This covers any investigation which the police had a duty to
conduct with a view to ascertaining whether someone should be
charged with an offence and also any investigation which may lead
to a decision to institute criminal proceedings. This is the
most important exemption for the purposes of any request by the
Committee. It covers the police and the CPS, and includes any
information held "at any time". It follows that information
will be withheld even where an investigation has been concluded.
68.3 Section 31 FOIA 2000 provides an additional
exemption for information which is not covered by s.30 but which
is nevertheless connected with law enforcement functions. It
covers any information of which the disclosure would be likely
to prejudice, inter alia, the prevention and detection of crime
and the administration of justice.
68.4 Under s.37 FOIA, a public authority is exempt
from the duty to communicate information where information relates
to communications with Her Majesty, any other member of the Royal
Family or with the Royal Household or to the conferring by the
Crown of any honour or dignity.
68.5 Under s.42 FOIA 2000, any information covered
by legal professional privilege can be withheld. This covers
any communications between a client and his legal adviser for
the purposes of giving or obtaining legal advice, and is likely
to cover any professional legal advice provided by in-house lawyers
at the police and CPS, as well as the details of the advice provided
to the CPS by a the team of independent counsel, led by David
Perry QC, on whether or not individuals could be charged.
69. These are qualified exemptions under FOIA
2000, and so they are only effective in exempting a public authority
from compliance with the duty to provide information where the
public interest in maintaining the exclusion of the duty outweighs
the public interest in disclosing whether the public authority
holds the information.[190]
There is undoubted public interest in the "Cash for Honours"
controversy, and in the efficiency and effectiveness of the police
inquiry into it. Few other issues have provoked such intense
speculation in the press and other public forums. However, there
is also a strong public interest in the protection of witnesses
who have given evidence to police. If information relating to
the investigation was disclosed to the Committee, the Metropolitan
Police could legitimately claim that such a disclosure would make
it extremely difficult for the police to gather information in
future. As a result, it is my opinion that the balance of the
public interest is likely to come down in favour of the protection
of the police sources in this case.
70. The following, absolute exemptions may also
apply:
70.1 Section 23(3) FOIA 2000 exempts the disclosure
of any information which was "directly or indirectly supplied
to the public authority by" or "relates to" a listed
body with a security function. This exemption would cover any
intercepted communications or any information provided by the
security services.
70.2 Under s.41 FOIA 2000, information can be
withheld if its disclosure would constitute an actionable breach
of confidence, and it would not be in the public interest to breach
this confidence. The Information Commissioner considers that
for a breach of confidence to be actionable it must meet the established
tests in Coco v Clarke [1969] RPC 41[191].
The requirements are that the information must have the necessary
quality of confidence; it must be imparted in circumstances giving
rise to an obligation of confidence; and there is an unauthorised
use of that information. A duty of confidence can arise when
the police photograph a suspect at a police station in circumstances
where the suspect's consent was not required. Where such a duty
arises the police are not free to make whatever use they liked
of the photograph but are under certain obligations to the suspect,
the breach of which would be actionable by him at private law.[192]
Though this exemption is not limited with reference to the public
interest, the Commissioner recognises that where there is an overriding
public interest in any particular case in disclosing the information
the courts have accepted that no duty of confidence is owed.
However, as noted above, there is a strong public interest in
protecting the identities of those who give evidence to the police
and regulatory bodies.
70.3 Under s.40 FOIA 2000, information can be
withheld if it is "personal data". Such information
can only be released if allowed under the DPA 1998.
71. Under s.1 DPA 1998, "personal data"
is defined as data which relates to a living individual who can
be identified from those data, or from those data and other information
which is in the possession of, or is likely to come into the possession
of, the data controller. It includes any expression of opinion
about the individual and any indication of the intentions of the
data controller or any other person in respect of the individual.
The first data protection principle requires that personal data
shall be processed fairly and lawfully and, in particular, that
it shall not be processed unless at least one of the conditions
in Schedule 2 (to the DPA) is met. It also requires that, in the
case of "sensitive personal data", at least one of the
conditions in Schedule 3 to the DPA must also be met (in addition
to at least one Schedule 2 condition) before processing can be
fair and lawful.
72. The introductions to police witness statements
generally contain the names, ages, occupations and addresses of
witnesses. In the statements themselves, witnesses tend to give
this same information as well as their interpretations of events
and their own observations, opinions and views which were provided
in order to assist the police investigation. This is likely to
be classed as "personal data" for the purposes of the
DPA 1998, and could also be considered as "sensitive personal
data".
73. Processing the "personal data"
in accordance with the principles of Schedule 2 DPA 1998 requires,
amongst other conditions, considering if the data subject has
given his consent to the processing[193],
and considering whether the processing is necessary for the purposes
of legitimate interests pursued by the data controller or by the
third party or parties to whom the data are disclosed, except
where the processing is unwarranted in any particular case by
reason of prejudice to the rights and freedoms or legitimate interests
of the data subject.[194]
74. In any police investigation, it is likely
that the individuals in question would have had no reasonable
expectation that the information would be processed for any purpose
other than those related directly to furthering that investigation.
Rather, they would expect, reasonably in the circumstances, that
it would be held only for that purpose and held in confidence.
Any person who provided information to the "Cash for Honours"
investigation would therefore have a strong legitimate interest
in the information not being disclosed.
75. It therefore follows that much of the information
contained in police witness statements is likely to be considered
as personal data for the purposes of the DPA 1998 and that release
of the information would be a breach of the data protection principles
contained in Schedule 2 to the DPA 1998.
76. Recent decisions of the Information Commissioner
underline my preliminary opinion that a Committee request to the
Metropolitan Police is unlikely to have any success. In Public
Authority: The Parades Commission, Information Commissioner's
Office Decision Notice, 14 Aug 2007, Case Ref: FS50146463, the
Commissioner emphasised again, at paragraph 29, the importance
of the public interest in protecting the identities of those who
give evidence to regulatory bodies.
77. These concerns are also well illustrated
by the recent decision of the Scottish Information Commissioner
in David Leslie and the Chief Constable of Northern Constabulary[195].
Mr Leslie, a journalist, had emailed Northern Constabulary requesting
all documents, reports and relevant material concerning any investigations
by Northern Constabulary into the death in April 1985 of Mr William
MacRae. In response, Northern Constabulary did not disclose the
following:
77.1 A book of photographs
of deceased;
77.2 A list of thirty four
witnesses and thirty two witness statements;
77.3 The Post Mortem report;
77.4 Newspaper cuttings;
77.5 Six documents relating
to the investigation.
78. Following an investigation, the Scottish
Information Commissioner found that generally Northern Constabulary
had dealt with Mr Leslie's request for information in line with
Part 1 of the Freedom of Information (Scotland) Act. Even though
there had been intense speculation in the press and other public
forums about how Mr MacRae died and there was a public interest
in providing accountability in relation to the efficiency and
effectiveness of the Force or its officers, the Scottish Information
Commissioner still held that the public interest was not best
served by placing the information into the public domain.
79. In assessing the public interest, he took
into consideration the likely upset that the release of the information
would have on the deceased's family, the fact that the interests
of third parties that assisted the police in the investigation
might be compromised by disclosure, and that disclosure could
make it more difficult for the police to gather information in
future. The Scottish Information Commissioner also considered
that to release untested, verbatim witness statements into the
public domain was likely to be unfair to those to whom the statements
relate as it risked provoking a form of summary justice.
80. It follows that it is highly unlikely that
a request under FOIA 2000 for information relating to the investigation
into the "Cash for Honours" controversy will have any
success.
H) Conclusion
81. For the reasons set out above, it is my initial
impression that the "Cash for Honours" investigation
provides further evidence of the need to reform the law of corruption.
82. However, even with the necessary reforms
in place, it may not be possible to overcome the evidential problems
that prosecutors face when dealing with clandestine offences
of this kind, or the pragmatic approach to prosecuting high-profile,
political personalities.
83. It should also be noted that previous attempts
to correct and clarify the law in this area in response to public
scandal has resulted in confusion and inconsistencies. .[196]
In order to avoid such problems arising again, a more suitable
response might be a structural reform of the legislation as it
currently stands, rather than seeking to extend still further
the scope of the criminal law.
84. I hope that the Committee will not hesitate
to contact me should further advice or assistance be required.
CHRISTOPHER SALLON QC
27th September 2007
Doughty Street Chambers
10-11 Doughty Street
London WC1N 2PN
154 CPS decision, 20th July 2007, paragraph
7. Back
155
"Lords nominees are blocked in Labour loan row", Times,
10 March 2006 Back
156
"Cronyism inquiry holds up new peers", Daily Telegraph,
27 December 2005 Back
157
"Labour reveals secret loans list", BBC, 20th
March 2006 Back
158
CPS decision, 20th July 2007, paragraph 3. Back
159
'CPS Statement in Full', Guardian, 20th July
2007 Back
160
Fifth Report of the Committee on Standard in Public Life, Cm 4057,
1998 Back
161
Archbold 2007, at 31-129.R v Whitaker [1914] 3 KB
1283 Back
162
R v Vaughan (1769) 4 Burr. 2494 Back
163
R v Pollman (1809) 2 Camp 229n Back
164
Archbold (2007) at 31-129 Back
165
Whitaker [1914] 3 KB 1283, per Lawrence J at pp 1296-7 Back
166
Russell on Crime (12th Edition 1964), at p381 Back
167
R v Barrett, 63 Cr.App.R. 174, CA Back
168
R v Carr-Briant [1943] KB 607 Back
169
Llewellyn-Jones [1968] 1 QB 429 Back
170
Report of the Joint Committee on The Draft Corruption Bill,
17 July 2003, at para 11. Back
171
See Oliver & Drewry, 'Parliament and the Law relating to Parliamentary
Standards' in in O. Gay and P. Leopold (eds), Conduct Unbecoming:
The Regulation of Parliamentary Behaviour, (Politico's Publishing,
London), pp. 181-212. Back
172
R v Greenway and others, Central Criminal Court, 25th
June 1992 (unreported).See the discussion in Public Law, Autumn
1998, at p.356 Back
173
Report of the Joint Committee on The Draft Corruption Bill,
17 July 2003, at para 105. Back
174
"The times Blair nearly resigned", Channel 4, 26th
June 2007 Back
175
See the Report of the Salmon Commission on Standards of Conduct
in Public Life, at para 87, and the report of the Nolan Committee
on Standards in Public Life, at para 2.104, the Report of the
Joint Committee on the Draft Corruption Bill at paragraph 13 and
the Law Commission Report No 248, at paragraph 2.33 Back
176
See Legislating the Criminal Code: Corruption (1998) Law Com No
248, at paragraph 1.2.As well as the offences set out above, see
also Sale of Offices Act 1551; Sale of Offices Act 1809; Licensing
Act 1964, s 178; Criminal Law Act 1967, s 5; Local Government
Act 1972, s 117(2); Customs and Excise Management Act 1979, s
15; Representation of the People Act 1983, ss 107, 109 and 111-115. Back
177
Legislating the Criminal Code: Corruption (1998) Law Com No 248. Back
178
Hansard, 5 Mar 2007 : Column 116WS Back
179
See also the Home Office discussion paper, Clarification of
the law relating to the Bribery of Members of Parliament, December
1996. Back
180
Legislating the Criminal Code: Corruption (1998) Law Com No 248,
at paragraph 5.43 Back
181
Redcliffe-Maud Report, at para 161; Salmon Report at para 61 Back
182
Salabiaku v France (1988) 13 EHRR 379.See also the comments
of Lord Woolf in Attorney General of Hong Kong v Lee Kwong-Kut
[1993] AC 951 Back
183
X v United Kingdom, App 5124/71, (1972) 42 Collection of
Decisions 135. Back
184
Legislating the Criminal Code: Corruption (1998) Law Com No 248,
at paragraph 4.28 Back
185
Legislating the Criminal Code: Corruption (1998) Law Com No 248,
at paragraph 4.29.Although this could be the result of the dearth
of successful prosecutions rather than to a lack of merit in the
argument. Back
186
This was the view of the General Council of the Bar, the Criminal
Bar Association and the SFO in their submissions to the Law Commission.Legislating
the Criminal Code: Corruption (1998) Law Com No 248, at paragraph
4.71. Back
187
ss.1(3) and 8 FOIA 2000 Back
188
See s.3, schedule 1 and schedule 5, FOIA 2000 Back
189
Hansard, House of Lords, 17 October 2000 Back
190
s.2(1)(b) FOIA 2000 Back
191
Public Authority: The Parades Commission, Information Commissioner's
Office Decision Notice, 14 Aug 2007, Case Ref: FS50146463, at
paragraph 25 Back
192
Hellewell v Chief Constable of Derbyshire [1995]
4 All ER 473, per Laws J. at p.478 h j, p.479 b d f
and p.480 f Back
193
Paragraph 1, Schedule 2, DPA 1998 Back
194
Paragraph 6, Schedule 2, DPA 1998 Back
195
Scottish Information Commissioner Decision, 27 August 2007, Decision
No. 155/2007 Back
196
As noted by the Law Commission at paragraph 1.2 of Legislating
the Criminal Code: Corruption (1998) Law Com No 248. The 1889
Act was introduced following revelations of malpractice made before
a Royal Commission appointed to inquire into the affairs of the
Metropolitan Board of Works.The 1916 Act was prompted by wartime
scandals involving contracts with the War Office, and was passed
rapidly through Parliament as an emergency measure. Back
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