Corruption and Misuse of Public Office

by Nicholls, Colin; Daniel, Tim; Polaine, Martin; Hatchard, John

• ISBN13: 9780199274581
• ISBN10: 0199274584
• Format: Hardcover
• Copyright: 2006-06-01
• Publisher: Oxford University Press

Summary

This book provides a comprehensive and detailed analysis of the law relating to corruption and misuse of public office. Written by leading practitioners with extensive experience of handling corruption cases both domestically and internationally, the book provides a clear exposition of the current law. The work examines the legal and practical issues relating to the investigation and prosecution of corruption cases, and includes coverage of related issues such as whistleblowing.

Author Biography

Colin Nicholls QC of 3 Raymond Buildings, is a leading criminal barrister specialising in complex commercial crime cases, corruption, and extradition. He has been a part-time judge and is presently President of the Commonwealth Lawyers Association. Professor John Hatchard is a professor at the Open University Business School and has written widely on constitutional law matters. Martin Polaine is currently seconded to the Independent Police Complaints Commission where the focus of his work is on the formation and implementation of policy relating to corruption involving police officers. He was called to the bar in 1986 and until 1994 practised from 4 Brick Court. Prior to his secondment, he was Senior Crown Prosecutor for the Crown Prosecution Service. During his time with the CPS, he was involved in setting up a specialist unit dedicated to the prosecution of sensitive corruption cases. Timothy Daniel is a Partner at Kendall Freeman Solicitors, where he specialises in corruption within the public international law context. He has extensive experience of major civil cases concerned with fraud and corruption, and has written and spoken widely on this subject. He is currently acting for the Federal Government of Nigeria in the recovery of assets in excess of L2 billion.

Table of Contents

Table of Cases	xxxiii
Table of Legislation, Treaties, and Conventions	xli
List of Abbreviations	liii
Biographies	lv
The Meaning and Scope of Corruption
The Meaning of Corruption	1	(11)
Definition of corruption	1	(6)
Grand and petty corruption	7	(3)
Systemic corruption	10	(2)
The Scope of Corruption	12	(5)
Arrangement of the Book	17	(26)
UK criminal law relating to the prosecution of corruption offences	18	(1)
Chapter 2: Offences of bribery and corruption	18	(5)
Chapter 3: Misconduct in public office	23	(3)
Chapter 4: Investigation and prosecution of corruption offences	26	(4)
Chapter 5: The movement for reform	30	(3)
UK civil law relating to bribery, corruption, and recoveries	33	(1)
Chapter 6: Civil remedies	33	(2)
Chapter 7: Civil recoveries	35	(1)
The regulation of conduct in public life	36	(1)
Chapter 8: The regulation of conduct in public life	36	(1)
The international fight against corruption	37	(1)
Chapter 9: International and regional initiatives	37	(1)
Chapter 10: The bribery of foreign public officials	38	(3)
Chapter 11: The corruption laws of other jurisdictions	41	(1)
Chapter 12: The role of civil society organizations in combating corruption	42	(1)
The Prevalence of Corruption in the World Today	43
Offences of Bribery and Corruption
Introduction	1	(6)
Common Law Offences	7	(24)
Bribery	7	(1)
Definition and scope of the offence	7	(2)
Any undue reward	9	(1)
Facilitation payments	10	(2)
Acting in an official capacity or performing a public function	12	(3)
The object of the bribe	15	(3)
The mental element	18	(2)
Entrapment	20	(3)
Defences and immunities	23	(3)
Penalty and mode of trial	26	(1)
Bribery distinguished from other common law offences	27	(1)
Misconduct in public office	27	(1)
Extortion	28	(1)
Embracery	29	(1)
Contempt of court	30	(1)
Statutory Offences	31	(38)
Introduction	31	(4)
The 1889 and 1906 Acts and the meaning of `corruptly'	35	(3)
The 1916 Act and the presumption of corruption in government contracts	38	(6)
Corruption in Public office	44	(1)
The offences	44	(1)
The penalties	45	(2)
Consent to prosecution and mode of trial	47	(3)
Definitions and interpretation	50	(9)
Corruption with agents	59	(1)
The offences and penalties	59	(3)
Consent to prosecution and mode of trial	62	(1)
Definitions and interpretation	63	(4)
The offence of using a false document to deceive a principal	67	(2)
Theft, False Accounting, Fraud, and Conspiracy to Defraud	69	(1)
Sentencing in Bribery and Prevention of Corruption Acts Cases	70	(5)
Jurisdiction	75	(7)
The general rule	75	(2)
Extraterritorial jurisdiction	77	(4)
Offences by Crown servants	81	(1)
Liability of Corporate and Unincorporated Bodies	82	(10)
Corporations	82	(5)
Liability of UK companies for offences committed by intermediaries	87	(3)
Avoidance of liability through company restructuring	90	(1)
Unincorporated bodies	91	(1)
Other Statutory Offences Involving Corruption	92	(19)
Sale of public offices	92	(1)
Corruption of Customs officers	93	(1)
Offences relating to honours	94	(4)
Corrupt practices at elections	98	(2)
Bribery at elections	100	(2)
Treating at elections	102	(1)
Using undue influence	103	(1)
Personation at elections	104	(1)
Election expenses	105	(1)
Mental element	106	(1)
Penalties	107	(1)
The funding of political parties	108	(3)
Recovering the Proceeds of Corruption	111
Introduction	111	(1)
Money laundering	112	(6)
The Proceeds of Crime Act 2002	118	(3)
Confiscation	121	(8)
Deprivation orders	129	(1)
Civil recovery	130	(3)
Taxation	133	(1)
Seizure of cash	134	(1)
Interim measures	135	(1)
Seizure	136	(1)
Management of seized assets	137	(1)
The GRECO Evaluation Report	138	(5)
International cooperation for interim measures and confiscation	143	(4)
International cooperation generally: mutual assistance and mutual legal assistance	147	(3)
Informal requests (mutual assistance)	150	(1)
Formal requests (mutual legal assistance)	151	(5)
The present UK position	156	(1)
Who may issue a letter of request?	157	(2)
Transmission of request	159
Misconduct in a Public Office
Introduction	1	(4)
The Nature and Elements of the Offence	5	(19)
Consideration of the Individual Elements	24	(50)
Public office holder	24	(24)
Breach of duty	48	(6)
The mental element required	54	(16)
The public office holder must be acting as such	70	(1)
Culpability and seriousness	71	(1)
`The misconduct must be of such a degree as to amount to an abuse of the public's trust in the office holder'	71	(2)
`Without justification or excuse'	73	(1)
The Tort of Misfeasance in Public Office	74	(16)
Postscript	90
The Investigation and Prosecution of Corruption
Criminal Investigation	1	(44)
The police	1	(7)
The Serious Fraud Office	8	(4)
Powers of the SFO under section 2 of CJA 1987	12	(13)
The revised Memorandum of Understanding on implementing Part 12 of ATCSA 2001	25	(8)
Department of Trade and Industry (Companies Investigation Branch)	33	(3)
Independent Police Complaints Commission	36	(9)
The Crown Prosecution Service	45	(12)
Prosecuting authorities in Scotland	56	(1)
The Reporting of Corruption	57	(18)
Civil servants	58	(3)
Posts abroad	61	(2)
Accountants	63	(4)
Company internal controls	67	(1)
Auditing	68	(4)
Reporting by the tax authorities and the issue of tax non-deductibility for bribes	72	(2)
Miscellaneous reporting obligations	74	(1)
Whistle-blower Protection	75	(33)
Reactive Investigations	108	(15)
Resident informants	111	(12)
Proactive Investigations	123	(92)
Interception of communications	123	(7)
Covert methodologies	130	(2)
The regulation of covert investigative techniques and the impact of the ECHR	132	(6)
`In accordance with the law'	138	(2)
`Necessary in a democratic society'	140	(1)
Proportionality	141	(2)
The effect of a breach of Article 8 during a proactive anti-corruption investigation	143	(3)
Covert human intelligence sources	146	(15)
Surveillance	161	(4)
Directed surveillance	165	(7)
Intrusive surveillance	172	(15)
Interference with property (Part III, Police Act 1997)	187	(8)
Entrapment	195	(16)
Integrity testing	211	(4)
Extradition	215	(38)
Export extraditions to designated EAW territories	222	(10)
Consent (Category 1 Territories)	232	(2)
Export extradition: Category 2 Territories	234	(19)
Import Extradition	253
Extradition requests to EAW states	253	(4)
Extradition requests to non-EAW states	257
The Movement for Reform
Corruption in Public Life	1	(9)
Shifting morality	1	(9)
The Redcliffe-Maud Committee	10	(7)
The Salmon Report	17	(9)
Post-Salmon	26	(4)
The Committee on Standards in Public Life	30	(4)
The Home Office Initiatives	34	(6)
Bribery of MPs	34	(6)
The Law Commission	40	(16)
Legislating the Criminal Code: Corruption, a Consultation Paper	40	(4)
The meaning of corruption	44	(1)
Corruption and breach of duty	45	(4)
Corruption, theft, fraud, and dishonesty	49	(1)
Corruption and theft	50	(2)
Corruption and fraud	52	(2)
Corruption and dishonesty	54	(2)
Provisional Conclusions and Proposals	56	(28)
The new offence	56	(1)
The agency relationship	57	(6)
Tripartite relationships: Liability of the Agent	63	(4)
Tripartite relationships: Liability of Third Parties	67	(4)
The nature of the benefit	71	(3)
Corrupt and non-corrupt conduct	74	(4)
Persons who have been, or are about to become, agents	78	(2)
Jurisdiction	80	(2)
Distinction between public bodies and others	82	(2)
The Law Commission's Report	84	(74)
Introduction	84	(2)
The present law and the need for change	86	(4)
The presumption of corruption and the distinction between public bodies and others	90	(10)
The agency relationship: the Law Commission's Recommendations	100	(5)
Private agency relationships	105	(1)
Quasi-fiduciary relationships	106	(1)
The list of examples	107	(1)
Transnational agency relationships	108	(1)
Agents with private foreign principals	108	(1)
Agents acting for the public interest of another country	109	(1)
Agents acting on behalf of international intergovernmental organizations	110	(1)
The concept of advantage	111	(2)
The offences	113	(1)
Corruptly conferring, or offering or agreeing to confer, an advantage	114	(1)
Advantage conferred on a person other than the agent	115	(1)
Intermediaries	116	(1)
Corruptly obtaining, soliciting, or agreeing to obtain an advantage	117	(1)
Corruptly performing functions as an agent	118	(1)
Agent receiving benefit from corruption	119	(2)
`Corruptly'	121	(2)
Is a definition necessary?	123	(3)
Corruptly conferring an advantage as an inducement	126	(2)
Corporate hospitality	128	(4)
`Sweeteners'	132	(1)
Bribee unaware of corrupt purpose	133	(1)
Proper remuneration or reimbursement	134	(1)
Things done with the consent of the principal	135	(5)
Corruptly conferring an advantage as a reward	140	(4)
Former and future agents	144	(1)
Corruptly obtaining or agreeing to obtain an advantage	145	(2)
Corruptly soliciting an advantage	147	(2)
Corruptly performing functions as an agent	149	(2)
Territorial jurisdiction	151	(1)
Requirement of the Attorney-General's consent	152	(4)
Mode of trial	156	(1)
Retrospectivity	157	(1)
The Government Response	158
The Government White Paper	158	(1)
Scope of the Government's proposals	159	(2)
Bribery and Members of parliament	161	(2)
Comments on main proposals in the White Paper	163	(1)
The Government's draft Corruption Bill	164	(5)
The Joint Committee on the draft Corruption Bill and the Government reply	169	(7)
Current status of the draft legislation	176
Civil Remedies
Introduction	1	(11)
The importance of civil remedies	1	(5)
Bribery and corruption	6	(3)
Principal and agent	9	(3)
Who May Be a Claimant?	12	(12)
The principal	12	(5)
Extending the concept of `principal'	17	(7)
Who May Be a Defendant?	24	(5)
Agents and bribers	24	(5)
Remedies against a Dishonest Agent	29	(24)
Dismissal	29	(1)
Restitution of the amount of the bribe	30	(3)
Recovering profits in addition to the bribe (1)	33	(3)
Remedies against the briber	36	(7)
Recovering profits in addition to the bribe (2)	43	(4)
Rescission, voidability, and termination	47	(3)
Rescission in other situations	50	(3)
Remedies Against Third Parties	53	(16)
Remedies against persons who dishonestly assist in corruption	54	(7)
Remedies against persons who receive the proceeds of corruption	61	(5)
Heads of claim	66	(3)
International Arbitration and Corruption	69
Arbitration awards	69	(2)
Arbitrability	71	(6)
The approach of foreign courts	77	(7)
The approach of the English courts	84	(12)
The extent of the arbitral tribunal's duties	96
Civil Recoveries
Interim Relief	1	(26)
Freezing and disclosure	1	(2)
Search and seize orders	3	(1)
Pre-action disclosure	4	(3)
Bankers' books	7	(3)
Preservation of evidence	10	(1)
Foreign banks	11	(2)
Witness summonses	13	(1)
Secrecy	14	(3)
Materials obtained in criminal proceedings	17	(2)
Freezing orders	19	(6)
`Free standing' freezing injunctions	25	(2)
Jurisdiction and Choice of Law	27	(23)
In England	27	(7)
Restitution and the conflict of laws	34	(14)
Bringing claims abroad	48	(2)
Recovery and Repatriation of State Assets	50	(19)
Looting by Heads of States	50	(1)
The case of Abacha	51	(4)
Repatriation of State Assets	55	(4)
The role of the UNCAC	59	(2)
The effectiveness of mutual legal assistance	61	(3)
Bearing the cost of recovery	64	(5)
Civil Recovery and the Proceeds of Crime Act 2002	69	(11)
The Assets Recovery Agency	69	(8)
Know your customer and money laundering	77	(3)
The Tax Treatment of Bribe Payments	80
UK taxation legislation	80
The Regulation of Conduct in Public Life
Introduction	1	(14)
The Seven Principles of Public Life	1	(4)
The Committee on Standards in Public Life	5	(10)
The Legislature	15	(22)
The House of Commons	15	(1)
The liability of Members of Parliament for offences of bribery and corruption	15	(4)
The Code of Conduct, appointment of a Parliamentry Commissioner for Standards and investigation of complaints	19	(1)
The Register of Members' Interests and the ban on paid advocacy	20	(3)
Implementation of the CSPL's recommendations	23	(8)
The House of Lords	31	(5)
Implementation of the CSPL's recommendations	36	(1)
The Executive	37	(12)
Introduction	37	(1)
Ministers	38	(2)
The Ministerial Code	40	(2)
Acceptance of gifts and hospitality	42	(1)
The Business Appointments Rules	43	(1)
Implementation of recommendations in the First Report	44	(2)
Investigating allegations of misconduct	46	(2)
The Prime Minister's Office	48	(1)
The Civil Service	49	(20)
Introduction	49	(2)
The First Report	51	(1)
Implementation of the CSPL's recommendations	52	(3)
Conduct: standards of propriety	55	(2)
The Business Appointments Rules	57	(3)
Civil servants and lobbyists	60	(1)
The CSPL's Sixth and Ninth Reports	61	(4)
Special advisers	65	(4)
Local Government, Quangos, and Local Spending Bodies	69	(16)
Local government in England, Scotland, and Wales	69	(1)
The CSPL's Third Report	69	(6)
Implementation of the CSPL's recommendations	75	(3)
Quangos (Executive NDPBs and NHS bodies)	78	(2)
Local spending public bodies	80	(5)
The Judiciary	85
Introduction	85	(2)
International initiatives	87	(1)
The UN Basic Principles on the Independence on the Judiciary	87	(2)
The Bangalore Principles	89	(4)
The Limassol Colloquium	93	(1)
Constitutional reform in the United Kingdom	94	(1)
The Constitutional Reform Act 2005	95	(4)
The rule of law	99	(1)
Judicial independence	100	(1)
The Supreme Court	101	(2)
The Judicial Appointments Commission	103	(1)
The Guide to Judicial Conduct in England and Wales	104
International and Regional Initiatives
Introduction	1	(5)
The importance of international and regional initiatives	2	(1)
Developing appropriate strategies	3	(3)
The United Nations	6	(50)
Early initiatives	6	(4)
UN Convention Against Corruption	10	(1)
Purposes of the Convention	11	(1)
Structure of the Convention	12	(2)
The Convention provisions	14	(1)
Chapter II: Preventative measures	14	(7)
Public procurement and management of public finances	21	(5)
Chapter III: Criminalization and law enforcement	26	(18)
Chapter IV: International cooperation	44	(4)
Chapter V: Asset recovery	48	(5)
Chapter VII: Mechanisms for implementation	53	(1)
Related United Nations initiatives	54	(2)
The Organization for Economic Co-operation and Development	56	(3)
Africa	59	(25)
Southern African Development Community Protocol Against Corruption	60	(2)
Preventative measures	62	(1)
Criminalization	63	(2)
International cooperation and asset recovery	65	(1)
Monitoring	66	(2)
The Economic Community of West African States Protocol on the Fight Against Corruption	68	(1)
African Union Convention on Preventing and Combating Corruption	69	(3)
Preventative measures	72	(4)
Criminalization	76	(3)
International cooperation and proceeds of corruption	79	(1)
Monitoring	80	(3)
Overview	83	(1)
The Organization of American States	84	(10)
The Inter-American Convention Against Corruption	85	(2)
Preventative measures	87	(1)
Criminalization	88	(3)
International cooperation and proceeds of corruption	91	(2)
Monitoring	93	(1)
Council of Europe	94	(30)
Criminal Law Convention on Corruption	97	(16)
Civil Law Convention on Corruption	113	(3)
Model Code of Conduct for Public Officials	116	(2)
Group of States Against Corruption	118	(4)
The OCTOPUS Programme	122	(2)
The European Union	124	(19)
EU Convention on the Protection of Financial Interests of the Communities and Protocols	126	(5)
The First Protocol	131	(3)
The Second Protocol	134	(1)
Convention on the Fight Against Corruption involving Officials of the European Communities or Officials of Member States of the European Union	135	(1)
Framework decision on combating corruption in the private sector	136	(7)
The Commonwealth	143	(16)
The legal legacy	145	(1)
Developing the just and honest government agenda	146	(13)
ADB/OECD Anti-Corruption Action Plan for Asia and the Pacific	159	(5)
Other International and Regional Initiatives	164	(12)
International Chamber of Commerce	165	(4)
The World Bank and International Monetary Fund	169	(7)
Overview	176
Prevention	178	(4)
Criminalization	182	(2)
International cooperation	184	(1)
Asset recovery	185	(1)
Monitoring	186
The Bribery of Foreign Public Officials
Introduction	1	(7)
The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1977	8	(14)
Background	8	(8)
Scope of the Convention	16	(6)
Criminalization (Article 1)	22	(33)
`Foreign Public Official'	24	(5)
`Offering, promising or giving'	29	(7)
`Directly or through intermediaries'	36	(3)
Third-party beneficiaries	39	(3)
The `advantage'	42	(7)
`In order that the official act or refrain from acting . . .'	49	(3)
`Intentionally'	52	(3)
The Consequent Debate: The Scope of Criminalization	55	(4)
Defences	59	(10)
General defences	59	(1)
Pressure, effective regret, and cooperation	60	(7)
Facilitation payments	67	(2)
Liability of Legal Persons (Article 2)	69	(21)
Sanctions (Article 3)	90	(5)
Jurisdiction (Article 4)	95	(5)
Enforcement and Prosecutorial Discretion (Article 5)	100	(5)
Statute of Limitations (Article 6)	105	(1)
Money Laundering (Article 7)	106	(3)
Accounting (Article 8)	109	(3)
Mutual Legal Assistance (Article 9)	112	(5)
Extradition (Article 10)	117	(3)
Tax Deductibility	120	(3)
Future Work and Convention Amendment (Article 16)	123	(10)
Accession (Article 13): looking ahead	127	(3)
Export credits, credit guarantees, and bribery	130	(3)
Some Lessons from the Lesotho Highlands Water Project	133
Joinder	137	(1)
Whose name should appear on the indictment?	138	(1)
Proving the fact of bribery	139	(1)
Jurisdiction	140	(3)
The use of agents, representatives, and intermediaries	143	(11)
Overview	154
The Corruption Laws of Other Jurisdictions
The United States	2	(16)
Corruption offences	3	(7)
Bribery of foreign public officials	10	(6)
Penalties	16	(2)
Selected Commonwealth Countries	18	(48)
Australia	18	(1)
Corruption offences	19	(3)
Bribery of foreign public officials	22	(6)
Defences	28	(3)
Penalties	31	(1)
Anti-corruption agencies	32	(1)
Canada	33	(1)
Corruption offences	34	(5)
Bribery of foreign public officials	39	(2)
Defences	41	(2)
Jurisdiction	43	(1)
Penalties	44	(1)
New Zealand	45	(1)
Corruption offences	46	(2)
Bribery of foreign public officials	48	(3)
Jurisdiction	51	(1)
Penalties	52	(1)
Investigation and prosecution	53	(1)
South Africa	54	(1)
Corruption offences	54	(9)
Anti-corruption agencies	63	(3)
Other Jurisdictions	66	(21)
Ireland	66	(6)
Hong Kong	72	(1)
Corruption law and related offences	73	(4)
Possession of unexplained wealth	77	(5)
Investigation and prosecution	82	(5)
Other Regions	87	(10)
The GRECO countries	88	(1)
Russia, Eastern Europe, and Eurasia	89	(1)
Baltic Anti-Corruption Initiative	90	(1)
South-Eastern Europe	91	(3)
Asia-Pacific	94	(2)
The Arab states	96	(1)
Anti-Corruption Commissions and Related Institutions	97
An integrated body?	101	(2)
Role and powers of anti-corruption agencies	103	(3)
Firm legal foundation	106	(1)
Independence	107	(3)
Security of tenure for commissioners	110	(1)
Adequate funding and resources	111	(2)
Adequate investigative powers	113	(4)
Accountability of an anti-corruption agency	117
The Role of Civil Society Organisations in Combating Corruption
Promoting Standard Setting in the Corporate Sector	2	(5)
Providing Access to Legal Materials	7	(5)
Legislation and case law	7	(3)
Articles and research meterials	10	(2)
Involvement in the Development of International and Regional Anti-Corruption Instruments	12	(1)
Providing Education and Training	13	(4)
Seeking to Quantify Corruption	17	(2)
Scrutinizing and Contributing to the Development of Anti-Corruption Laws and Procedures	19	(5)
A Note on Selected Anti-Corruption Organizations	24	(8)
Transparency International	25	(1)
The Corner House	26	(1)
Unicorn	27	(1)
Tiri---the governance-access-learning network	28	(3)
U4---Utstein Anti-Corruption Resource Centre	31	(1)
Probe International	32