AIL & Ors, R v

Before the 2001 amendments, section 1 of the Prevention of Corruption Act 1906 already applied to corruption involving an agent of a foreign principal or foreign body, where the offence was otherwise triable in England and Wales. The ordinary meanings of agent and principal, reinforced by the inclusive statutory definitions, were not confined by nationality or location.

The separate restriction of the definition of a public body in the Public Bodies Corrupt Practices Act 1889 did not qualify the distinct agent-and-principal offences in the 1906 Act. The Prevention of Corruption Act 1916 did not import that restriction. Section 108(2) of the Anti-Terrorism, Crime and Security Act 2001 put the position beyond argument but was enacted as a precautionary clarification.

The Serious Fraud Office alleged that AIL paid bribes from an English bank account to officials or agents of foreign organisations in India, Poland and Tunisia in order to obtain transport contracts. The respondents faced substantive and conspiracy charges under section 1 of the Prevention of Corruption Act 1906.

At a preparatory hearing under the Criminal Justice Act 1987, Judge Pegden QC ruled that, before 14 February 2002, the 1906 Act did not criminalise corruption of an agent of a foreign principal or public body, even where the actus reus occurred in England and Wales. The prosecution appealed. The central issue was the pre-2001 territorial reach of the statutory expressions agent and principal.

1. Appeal allowed. Before the coming into force of the Anti-Terrorism, Crime and Security Act 2001, it was an offence under section 1 of the Prevention of Corruption Act 1906 to corrupt an agent of a foreign principal or foreign body. The Crown Court ruling was reversed pursuant to section 9(14) of the Criminal Justice Act 1987.

2. The question was one of statutory construction, not territorial jurisdiction. Statutory words ordinarily bear their plain, ordinary and natural meaning unless the legislation indicates otherwise. Criminal law requires sufficient, rather than absolute, certainty. There is no general principle that the nationality, residence or location of a victim or perpetrator forms an ingredient of an English criminal offence.

3. Section 1 of the 1906 Act created distinct corruption offences based on the relationship between an agent and a principal. Those expressions were neutral as to nationality and territory. The inclusive definitions in section 1(2) and (3) ensured that the terms bore their broad ordinary meaning, rather than a narrower technical meaning derived from agency law. They therefore encompassed foreign as well as domestic persons and organisations.

4. The 1889 and 1906 Acts created parallel but separate species of corruption offence. The express exclusion of foreign public bodies from the definition in section 7 of the Public Bodies Corrupt Practices Act 1889 did not limit the different terms used by the 1906 Act. Section 4(3) of the Prevention of Corruption Act 1916 added public-body servants to the non-exhaustive class of agents. It neither imported the 1889 restriction nor altered the definition of principal.

5. Section 108(2) of the 2001 Act made the application of the 1906 Act to foreign agents and principals indisputable. It was enacted ex abundanti cautelae in response to OECD concerns, not because the former law excluded such persons. The Court did not accept the contrary obiter view in R v J and others [2013] EWCA Crim 2287.

• Court of Appeal (Criminal Division): Allowed the prosecution appeal and reversed the preliminary ruling under section 9(14) of the Criminal Justice Act 1987.

• Crown Court at Southwark: On 10 November 2015, Judge Pegden QC ruled that the Prevention of Corruption Act 1906 did not, before 14 February 2002, criminalise corruption of an agent of a foreign principal or foreign public body.