Corruption: What the Prosecution has to Prove (R, J, B, V and S)

As corruption litigation becomes less of a rarity, the Court of Appeal in R v J, B, V, S [2013] EWCA Crim 2287 analysed what the prosecution has to prove under s.1 of the Prevention of Corruption Act 1906 (the 1906 Act).  

The appellants (the prosecution) challenged the ruling made by a judge of the Crown Court in relation to what the prosecution has to prove under s.1 of the Prevention of Corruption Act 1906 (the 1906 Act).  

The respondents (the defendants) are indicted with conspiracy, “corruptly to give agents” of the tax authorities of a State in the Commonwealth a substantial sum of money as an inducement to show favours to a company in relation to the calculation of tax owed by that company to the tax authorities.  

The Judgment reads:

[44]  For the reasons we have set out the prosecution does not have to prove as an ingredient of the offences under s.1 of the 1906 Act that the principal did not know of the payment and did not give his informed consent. The prosecution need do no more than prove that the payment made for the prohibited purpose was made corruptly.

[45]  For example, in determining whether the payment was made corruptly in the case of transactions between commercial agents and principals any evidence relating to what was disclosed to the principal and what the principal knew and any informed consent may, as we have stated, be highly material to the issue of whether they acted corruptly. In such cases, the evidential inquiry may give rise to the factual issue of identifying the actual principal who is entitled to give informed consent after full disclosure. In the case of an overseas body corporate this may raise difficult factual inquiries in the light of the applicable law as determined by the judge. These are, however, all matters of evidence that may go to the issue of whether the payment for the prohibited purpose in transactions between commercial agents and commercial principals was made or received corruptly. However, by way of a contrary example, where there was a payment to a public official in the UK for the prohibited purpose, evidence as to knowledge and consent will, for the reasons we have given, not arise. What the Crown has to prove remains the same in each case – that the payment for the prohibited purpose was made corruptly; evidence as to the informed consent of the actual principal may  or may not be material or highly material depending on the facts of the case.

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