Headaches with transglobalism; Case Study BAE

Bribery law reform could tackle wrongdoing in high places

Clare Dyer, legal editor
Thursday November 29, 2007
The Guardian

Proposals published today for changes to the "out-of-date" and "uncertain" law of bribery could make it easier to prosecute in cases such as the corruption investigation into BAE Systems.

The change, in a Law Commission consultation paper commissioned by the Home Office, would remove the so-called Nuremberg defence - "I was only following orders" - by enlarging the offence of bribery to include corruption at the highest level of an organisation.

At present, in the private sector, the offence of bribery is confined to situations where an agent or employee betrays his principal. If the principal approves the bribe, the offence is not committed.

Although the Serious Fraud Office investigation into BAE Systems was said to have been dropped on public interest grounds - in response to Saudi threats to withdraw cooperation in the war on terror - Lord Goldsmith, then the attorney general, said he had received a QC's advice that the case could not be successfully prosecuted in any event.

He said in the Financial Times last January:

"The principal obstacle [was that] BAE were asserting that the payments they were making had been authorised at the highest level."

To the question, "

The highest level of the Saudi royal family?"

he replied:

"Yes, the Saudis."

He added: "

Normally to produce a corruption case you will call somebody senior from the company to say, 'Good heavens, I never knew the marketing director was taking used £50 notes, or getting a free subscription to the golf club, or having his roof done', or whatever it may be. That's the first person you call. How were the SFO going to deal with that in this case? Were they going to be able to call someone from Saudi to say this wasn't authorised? "

The Law Commission produced a controversial report calling for reform of the law of corruption in 1998, but its recommendations never reached the statute book. Its latest proposals have a narrower remit, concentrating only on bribery, and follow criticisms of UK law by the OECD, whose conventions on bribery and corruption the UK has signed up to.

The Law Commission proposes broadening the offence of bribery to get rid of the need for an agent to betray a principal. The offence would be committed by someone who offers an advantage to another as a reward for breaching a trust, or breaching a duty to act impartially or in the best interests of another person.

The person soliciting or taking the advantage would also be guilty, and agreeing to use one's influence to persuade someone else to breach a duty would also be an offence of bribery.

At present, bribery outside the UK can be prosecuted here only if it was committed by a British national.

The Law Commission says this should be extended to cover foreign nationals resident in the UK. Its paper also calls for a separate offence of bribing a foreign public official.

Comment: Yeah, right. Not in my lifetime. OR .. Don't holdjer breath, baby.