Law Our Learned Friend: Clean the slate

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The Independent Culture
IN 1959, a Castleford man named John Smith offered his local mayor pounds 500 in a crass attempt to "persuade" him to use his influence to get the council to sell him some land. The affair reeked of corruption. Upholding his conviction, the Court of Appeal pointed out that this was just the kind of temptation that the law was designed to prevent. Corruption was an ordinary word that a jury could easily understand and needed simple legal expression.

The disgrace of the International Olympic Committee members involved in the 2002 Winter Olympics affair and the savaging of the European Commission speaks for itself. The acceptance of large sums of money and the appointment of cronies, combined with the unaccounted distribution of funds does not seem too far away from the story of the mayor of Castleford.

It would be comforting to know that in Britain we are well protected by the law against this kind of disgraceful behaviour. Yet the criminal law lacks clarity, is ancient and beset with problems.

Our corruption legislation was the result of a Royal Commission into the local government of London, which led to the Prevention of Corruption Act 1889. It was confined to public bodies and required a further Act in 1906 to include the private sector. Then in 1916, as a wartime measure, the law was changed to reverse the burden of proof in cases involving payment to public employees, so that it was for the defence to prove that a given payment was not corrupt.

The need for reform has become more urgent for two reasons. At the heart of most corruption cases is the "money gift or consideration". Once established, a presumption of guilt exists and an innocent explanation must be given. The Criminal Justice and Public Order Act 1994 abolished the "right to silence". Section 35 allows the jury to draw such inferences as appear proper from a defendant's failure to testify or answer a question. This makes the presumption unnecessary. Further it may be that this burden is in breach of Article 6(2) of the European Convention of Human Rights which provides that "Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law". The position on inferences from silence following the Norther Ireland case of Murray v UK is under review in pending cases. And if it can be argued that the presumption is effectively a form of coercion in the face of questioning then the legal position looks untenable.

The other concern is the pressing need to deal with the problem that corruption offences are to be found in 11 different statutes. The Law Commission has recommended a specific offence of bribery.

The strengthened police powers to investigate and seize material under the Police and Criminal Evidence Act 1994, the defence disclosure provisions under the Criminal Procedure and Investigation Act 1996 and permissible entry and interference with property provisions of the Police Act 1997 all enable the authorities to conduct a vigorous investigation and present a compelling case.

Forty years on the time has surely come to get it right.

Nicholas Paul is a barrister at Doughty Street Chambers