Director of Public Prosecutions v Jugnauth and another

For a criminal conflict-of-interest offence, the prosecution must prove both the statutory factual elements and the corresponding mens rea. Liability cannot be based solely on an apparent interest perceived by a fair-minded observer.

The prohibition extends broadly to participation in proceedings concerning a public-body decision, including substantive acts in the execution of a contract. A relative’s personal interest must be assessed in relation to the particular decision. It need not be financial or direct, but it must be an individual interest rather than a general public interest.

Where full mens rea is required, there is no additional half-way-house defence of honest and reasonable mistake. A decision merely reallocating available payment funds between internal government budgets did not affect the company’s or shareholder’s interests.

The Director of Public Prosecutions appealed from the Supreme Court of Mauritius, which had quashed Pravind Kumar Jugnauth’s conviction under section 13(2) and (3) of the Prevention of Corruption Act 2002.

Mr Jugnauth, then Vice Prime Minister and Minister of Finance, approved the reallocation of funds to pay Medpoint Ltd after the contract had been awarded and the purchase price fixed. His sister owned approximately 23.59% of Medpoint’s shares. The Intermediate Court convicted him and imposed a 12-month prison sentence. The Supreme Court allowed his appeal, holding that the offence involved strict liability, that a good-faith defence was available, that his sister had no relevant personal interest, and that the later payment arrangements were outside section 13(2).

The appeal raised the meaning of the mental and factual elements of the offence, the scope of participation in proceedings, and whether the particular reallocation decision engaged the sister’s personal interest.

The appeal was dismissed. The Board held that the Supreme Court had reached the correct ultimate conclusion, although several of its reasons were wrong.

1. Section 13(2) of the Prevention of Corruption Act 2002 creates neither an absolute nor a strict-liability offence. The prosecution must prove, to the criminal standard, each actus reus element: the defendant’s status as a public official; a decision taken by a public body; a relative’s personal interest in that decision; and the defendant’s participation in related proceedings. Corresponding mens rea must also be proved. This includes knowledge or subjective recklessness as to the relevant factual circumstances and intentional or reckless participation. Knowledge of the primary facts is required, but knowledge that those facts amount to a personal interest in law is not.

2. The Intermediate Court’s reference to an absolute prohibition concerned the comprehensive scope of prohibited participation, not absolute liability. Its findings showed that it had considered the defendant’s knowledge and conduct. Since full mens rea was required, there was no scope for an additional half-way-house defence based on honest and reasonable mistake of fact. The Board left open whether such a defence could arise where the presumption of mens rea was displaced in another context.

3. The words any proceedings are broad. They include a single event capable of leading to the relevant conflict, acts leading to formation of a contract, and acts performed in its execution. Signing and approving the minute was therefore participation in proceedings and was not merely administrative.

4. A personal interest is an individual interest of the official, relative or associate, distinct from the general interest of the public. It need not be financial or direct. A company and its shareholder may both have personal interests in the same decision, and the relevant decision must be analysed individually.

5. Here, however, the relevant decision concerned only which of two available internal government budgets would fund payment. The contract was binding, the price had been fixed, and funds were available. The reallocation could not affect Medpoint or Mrs Malhotra. The prosecution therefore failed to prove the personal-interest element of the offence, and, correspondingly, the defendant could not have known of facts giving rise to such an interest. The conviction was properly quashed.

1. Privy Council: appeal dismissed.
2. Supreme Court of Mauritius: on 25 May 2016, allowed the appeal and quashed the conviction and sentence; conditional leave to appeal was granted on 22 June 2017 and final leave on 15 January 2018.
3. Intermediate Court of Mauritius: convicted the defendant on 30 June 2015 and sentenced him to 12 months’ imprisonment on 2 July 2015.