In the last days of the Victorian law on corruption in England, the Court of Appeal in R v Webster  EWCA Crim 2819 has handed down an important judgment about the reverse burden of proof, the presumption of corruption, in the Prevention of Corruption Act 1916 (PCA). As we look forward to 1 July and the coming into force of the Bribery Act 2010, it is worth looking at this decision, soon to be a footnote in legal history.
Although the Bribery Act contains no similar presumption of corruption, it does introduce the corporate offence of failing to prevent bribery for which proof beyond reasonable doubt is required that a person has been bribed by an associated person of the company for the purpose of retaining or obtaining business or some other advantage. Whilst no actual conviction is needed, it is likely to be hard to produce evidence that bribery has taken place in many cases; particularly without a reverse burden on the defendant. The case of Webster is an example of this.
The case involved an alleged corrupt relationship between a businessman and a local authority employee. At trial the defendant was acquitted of three out of four charges and convicted by a majority on the final count of a cash gift of £100.
The issue was the compatibility with Article 6 of the European Convention on Human Rights of the reverse legal burden of proof in section 2 of the PCA which required the defendant to prove that the gifts were not given corruptly as an inducement or reward. The court held that the reverse burden provision could be read down pursuant to section 3 of the Human Rights Act 1998 and a declaration of incompatibility was not necessary.
The question the court had to decide was whether the imposition of a reverse burden of proof unjustifiably infringed the presumption of innocence. This is clearly not so in every case. Where a reverse burden does not interfere with the primary duty of the prosecution to prove its case beyond reasonable doubt, a reverse burden will not necessarily interfere with fair trial rights.
When the Law Commission was considering the reform of the bribery law, it concluded in 1998 that there was no justification for the presumption of corruption; particularly in light of changes to the privilege against self incrimination introduced by the Criminal Justice and Public Order Act 1994 (adverse inferences from silence at interview and failure to give evidence at trial). There should, it was felt, be no difference between proving a corrupt state of mind and proving a dishonest state of mind in a fraud case. For this reason, the Bribery Act 2010 contains no reverse burden provision.
When prosecutors seek to prove that a company is guilty of an offence of failing to prevent bribery, under the Bribery Act, they will not necessarily have the benefit of being able to rely on adverse inferences from silence either at interview or trial. This is because it is not necessary to secure a conviction for bribery by an associated person (e.g. an employee) to prove the new offence of failing to prevent bribery. It may often be very hard indeed for prosecutors to prove the necessary element in the offence of failure to prevent bribery: proof beyond reasonable doubt that bribery actually took place.
As the previous government’s regulatory impact assessment for the Bribery Bill put it: only one more SFO prosecution was expected every year and only one more by the CPS every three years. So much for satisfying the OECD that the UK really does mean business when it comes to fighting corruption. Any prosecutions that do arise in the next few years are likely to be as a result of self-reporting, not independent publicly funded investigation. In any self-reported case, the question for the investigator will always be whether there really is proof beyond reasonable doubt of bribery. The simple fact is that it’s not easy to prove!
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