J & Ors, R. v

Under section 1 of the Prevention of Corruption Act 1906, the prosecution need prove that a payment or consideration for a prohibited purpose was made or received corruptly. It need not prove as a separate ingredient that the agent’s principal lacked knowledge of, or gave no informed consent to, the payment.

In commercial cases, full disclosure and informed consent may be highly material evidence bearing on whether conduct was corrupt. Where there is a sufficient evidential basis, that factual issue is for the jury. The statutory rule is the same for public officials, but purported consent cannot authorise a payment to a United Kingdom public official for the prohibited purpose.

The respondents were charged with conspiring corruptly to give substantial payments to agents of the tax authorities of a Commonwealth state as an inducement to favour a company in calculating its tax liability.

A Crown Court judge ruled that the prosecution had to prove that the agents’ principal, the tax authority, did not know of and did not consent to the payments. The prosecution appealed because the ruling could affect other pre-Bribery Act 2010 prosecutions concerning foreign officials. An accused in a related prosecution was permitted to intervene.

The central issue was whether lack of the principal’s knowledge and informed consent was an additional ingredient of an offence under section 1 of the Prevention of Corruption Act 1906, or instead was potentially relevant evidence on whether the payment was made corruptly.

1. Appeal allowed. The Crown Court ruling was set aside. Section 1 of the Prevention of Corruption Act 1906 requires proof that consideration was given or received corruptly and for one of the prohibited purposes. It does not require the prosecution additionally to prove absence of the principal’s knowledge and informed consent.
2. The word corruptly has its ordinary meaning. The court followed the approach in R v Wellburn, namely that there is no benefit in adding a gloss to ordinary statutory language where the context does not require one. Whether conduct was corrupt is ordinarily a question the jury can determine from all the evidence.
3. The history of secret commissions did not justify implying a separate secrecy ingredient. Parliament could have made lack of informed consent an express element in commercial-agent cases, but did not do so. The Act was deliberately framed to include persons serving under the Crown and public bodies as agents.
4. In a commercial case, evidence that the actual principal received full disclosure and gave informed consent may be material, and may be highly material, to whether a payment was corruptly made or received. If there is a sufficient evidential basis, the jury must consider it. That is an evidential issue, not an additional fact that the prosecution must prove in every case.
5. A purported consent cannot authorise a payment to a United Kingdom public official for a prohibited purpose. The extension to overseas principals and agents did not alter the ingredients of the offence, although the identity of a foreign corporate principal and the effect of applicable law may create difficult evidential questions in a commercial case.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 2287, allowed the prosecution’s appeal and set aside the Crown Court ruling.
• Crown Court: Ruled that the prosecution had to prove that the agents’ principal neither knew of nor gave informed consent to the relevant payment.