England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice The Strand
		2nd July 1999

Mr Justice Maurice Kay: The Applicant is one of a number of Defendants awaiting trial in Northampton Crown Court on an indictment containing nine counts. At all material times the Applicant was the managing director of a group of companies. The case concerns alleged corrupt payments made by him and three of his colleagues to two civil servants in return for removing stolen fuel from Ministry of Defence sites. The Applicant is charged in counts 1, 4, 5, 8 and 9 of the indictment. Count 1 is set out as follows:

"Statement of offence

CONSPIRACY TO MAKE CORRUPT PAYMENTS, contrary to Section 1 (1) of the Criminal Law Act 1977.

Particulars of Offence

DENNIS CHARLES ROCKALL, BERNARD WAYMAN, GRAHAM CAMPBELL AND MELVIN SUTTON between the first day of January 1992 and the first day of December 1995 conspired together and with others corruptly to make payments to agents of the Ministry of Defence as inducements or rewards in relation to the disposal of fuel contrary to Section 1 of the Prevention of Corruption Act 1906."

Counts 4 and 5 are substantive counts of corruption contrary to Section 1 of the Prevention of Corruption Act 1906. Counts 8 and 9 are charged as conspiracies to steal.

Proceedings in the Northampton Crown Court have been underway for some time and, but for the matters before me, the trial would have commenced on the 14th June. The event which has precipitated the adjournment of the trial and the making of this application is the decision of the Divisional Court in Ex parte Kebilene and Others, 30 March 1999.

The offences charged in counts 1, 4 and 5 of the present indictment require the prosecution to obtain the consent of the Attorney General. Consents were signed in October 1997. In accordance with the relevant statutory requirements, there were separate consents in relation to the conspiracy count and the substantive counts. Before Kebilene, the intention of the Crown had been to proceed in relation to both the conspiracy count and the substantive counts of corruption and not to elect.

The substantive offence of corruption which the Applicant faces in counts 4 and 5 is defined in section 1 (1) of the Prevention of Corruption Act 1906. So far as is material is reads as follows:

"If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or for forbearing to show favour or disfavour to any person in relation to his principal's affairs or business ......

he shall be guilty of a misdemeanour....."

As is well known, perceived evidential difficulties resulted in Parliament easing the task of the Crown by section 2 of the Prevention of Corruption Act 1916 which is in the following terms:

"Where in any proceedings against a person for an offence under the Prevention of Corruption Act 1906, or the Public Bodies Corrupt Practices 1889, it is proved that any money, gift, or other consideration has been paid or given to or received by a person in the employment of Her Majesty or any Government Department or public body by or from a person, or agent of a person, holding or seeking to obtain a contract from Her Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given or received corruptly as such inducement or reward as is mentioned in such act unless the contrary is proved."

This introduced what is sometimes called a reverse burden of proof.

In the light of Kebilene, the Applicant requested the Attorney General to reconsider his consents on the basis that section 2 of the 1916 Act is or may not be consistent with the right to a fair trial enshrined in Article 6 of The European Convention on Human Rights and that the Attorney General ought to approach the matter as the Divisional Court held the Director of Public Prosecutions ought to have considered the continuation of the prosecution in Kebilene, following the enactment of the Human Rights Act 1998 and in advance of its commencement date.

The response of the Attorney General is contained in a letter dated 10 June 1999. It is in the following terms:

"The Attorney General has considered the request to withdraw the consent to prosecution in this case. He declines to do so.

In your letter you cite the decision in Ex parte Kebilene as the basis upon which consent should be withdrawn. As you have been informed, that decision is the subject of an appeal and the statutory provisions considered in it are not, of course, identical to the presumption of corruption provided by section 2 of the Prevention of Corruption Act 1916. That said, it is accepted that there are grounds, in particular as set out in the Law Commission Paper `Legislating the Criminal Code: Corruption` (published in 1998, after the consent to prosecution in this case had been given) for arguing that the presumption of corruption contravenes Article 6 of the ECHR. However it does not follow from this that the consent to prosecution must be withdrawn since, for the reasons set out below, it will be possible for there to be a trial which will adjudicate upon the substance of the alleged criminality of your client without the unfairness that is said to be the result of the operation of section 2. In accordance with the Practice Direction (Conspiracy) 64 Cr. App. R. 258, the Prosecution will be required by the trial judge either to justify the joinder of the substantive counts and conspiracy counts in the indictment or to elect whether to proceed on one or other set of counts. It has been decided that the Prosecution will elect to proceed on the conspiracy counts alone. It is not considered that the presumption under section 2 of the Prevention of Corruption Act 1916 can arise in relation to the conspiracy counts.

As you are aware the presumption in section 2 of the 1916 Act applies in ` proceedings against a person for an offence under the Prevention of Corruption Act 1906 or the Public Bodies Corrupt Practices Act 1889' Conspiracy to commit criminal offence (other than conspiracy to defraud) is an offence contrary to section 1 of the Criminal Law Act 1977. It follows that the conspiracy offences, not being proceedings for an offence under either the 1906 of 1889 Act, cannot give rise to the presumption which you say offends your clients Human Rights.

It may be helpful if I make it clear that, in deciding to elect to proceed on the conspiracy counts only, the Prosecution is adopting an approach to the resolution of the issues raised in your letter which is intended to meet the concerns about the statutory presumption in the 1916 Act, and yet will ensure that the serious allegations of criminal conduct are adjudicated upon by a criminal court."

On 14 June 1999 the matter was raised before the trial judge, His Honour Judge Crane, in Northampton Crown Court. The trial date was vacated to await the outcome of an application to this court which now comes before me as an application for permission to seek judicial review of the decision of the Attorney General. The Attorney General has been represented before me. His position is that I ought to refuse permission on the ground that the applicant does not have an arguable case. In the light of the stance of the Attorney General and the Crown in relation to counts 4 and 5, the main argument before me has centred on Count 1, the conspiracy count. At the commencement of the hearing I considered with Counsel whether the application should be adjourned until after the House of Lords has considered Kebilene, the appeal in which is due to be argued in two weeks time. However, we do not know when their Lordships will conclude matters, and quite apart from the desirability of progressing the present case, there are other cases awaiting trial in the near future the management of which may benefit from an early decision on this application in relation to corruption and conspiracy to corrupt. In these circumstances I decided not to adjourn.

The submission made by Mr Perry on behalf of the Attorney General on the main issue can be encapsulated in this way: whatever may turn out to be the position in relation to counts 4 and 5 and the substantive offence, the Kebilene point cannot apply to count 1 because the reverse burden of proof provided in section 2 of the 1916 Act does not apply to a charge of conspiracy to corrupt, even though the corruption which is alleged is said to be in a form which amounts to a substantive offence under section 1 of the 1906 Act.

The starting point of any consideration of this issue is the Criminal Law Act 1977, section 1(1) of which states:

"Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either

(a) will necessarily amount to or involve the commission of any offence or any offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question."

In Cuthbertson 1981 AC 470 the question was whether a common law conspiracy to contravene the provisions of section 4 of the Misuse of Drugs Act 1971 attracted the forfeiture provision contained in section 27 of that Act. The charge was conspiracy at common law because it had occurred prior to the commencement of the Criminal Law Act 1977. Lord Diplock (with whom Lords Edmund Davies, Russell of Kilowen, Keith of Kinlkell and Scarman agreed) concluded "with considerable regret" (page 479G) that section 27 did not apply to conspiracy. He said (at pages 480G to 482B):

"As I have said the relevant offences in the instant case were conspiracies at common law to commit criminal offences. They were charged as continuous conspiracies over a period of years which terminated before Part 1 of the Criminal Law Act 1977 came into force. Had they been entered into or continued thereafter they would have been statutory conspiracies under section 1 of that Act; but this would not, in my view, have made any difference. The essence of the offence in this class of conspiracy, whether under the Criminal Law Act 1977 or at common law, is an agreement to pursue a course of conduct which if carried out, would amount to or involve the commission of a criminal offence by one or more of the parties to the agreement......

My Lords, with this, the legal nature of the offence of conspiracy, in mind, I turn to the language of section 27(1) of the Misuse of Drugs Act 1971. There are two reasons why, in my opinion, that section does not apply to cases where the relevant offence of which a person has been convicted is conspiracy to commit an offence under the Act; and this is so whether the conspiracy charge is laid as a statutory conspiracy under section 1 of the Criminal Law Act 1977, or was laid as a conspiracy at common law before that section came into force.

In the first place, to come within section 27 (1) of the Misuse of Drugs Act 1971, the offence of which the accused has been convicted must be `an offence under this Act'. It is true that an agreement to produce or to supply a particular drug, which would be lawful if the Act had not been passed, is made unlawful by the Act where it relates to a controlled drug. So, it may be said, to enter into such an agreement is an offence which owes its criminal character to the Act and in this loose sense it is capable of falling within the description `an offence under this Act' if that is expression is given a very broad interpretation.

The fact that the section is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that which they would ordinarily bear; and, in the instant case, the whole structure of the Act in my opinion points conclusively in the opposite direction. Wherever an offence is created by the Act itself this is done expressly. ....For each of the offences so created, express provision for its mode of trial and punishment is made by section 25 and Schedule 4. All the provisions of the Act which expressly create offences (apart from section 19) are listed seriatim in column 1 of that Schedule....the one exception, section 19, is a section that provides expressly that it is an offence for a person to attempt to commit an offence under any other provision of the Act or to incite or attempt to incite another to do so. So the draftsman, where he intends to make even inchoate offences `offences under this Act', does so expressly; he also makes express provision for their mode of trial and punishment.....

My Lords, it is in my view clear from this that section 25 and Schedule 4 between them contain a comprehensive list of all offences, substantive or inchoate, which are included in the expression `an offence under this Act' in section 27 (1), and that in order to fall within the expression there must be found in the Act some express provision declaring and defining the offence. No such express provision is to be found in respect of conspiracy to contravene a provision of the Act"

I do not need to refer to the second reason why Lord Diplock reached his conclusion.

In McGowan 1990 Criminal Law Review 399 the Court of Appeal Criminal Division had to decide whether Section 28 of the Misuse of Drugs Act applies to a statutory conspiracy to produce a controlled drug. Where Section 28 applies, it provides a defence:

"for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged."

(Section 28(2))

That provision applies to "offences under any of the following provisions of this Act." The Court of Appeal Criminal Division decided, following Cuthbertson, that offences of conspiracy were not offences under the Misuse of Drugs Act for the purposes of section 28 because section 28 expressly listed the offences to which it applied and conspiracy was not one of them. The Crown had argued that a logical absurdity would be created if there were counts both of conspiracy and of the substantive offence being tried together with different burdens of proof but the Court considered that there was no ambiguity and the burden of proof remained throughout on the Crown where conspiracy was charged. In commenting on this case in the Criminal law review, Professor J C Smith said (page 400);

"A conspiracy to commit an offence is an offence under the Criminal Law Act 1977. The offence to be committed (`the ulterior offence') may be an offence at common law or an offence under another statute but the conspirator is convicted of the offence under section 1 of the 1977 Act. Section 3 of that Act begins: `a person may be guilty by virtue of section 1 above of conspiracy to commit any offence or offences.....' the ulterior offence may be triable only summarily bur the conspiracy to commit it is triable only on indictment. The ulterior offence maybe one of strict liability, but, on a charge of conspiracy to commit it, mens rea must be proved as Section 1 (2) of the 1977 Act makes clear. Section 1 (2) is inconsistent with any rule imposing an onus on the Defendant of proving that he was unaware of an element of the offence.......it is entirely clear then that the conspiracy is an offence separate and distinct from the ulterior offence. The `logical absurdity' envisaged by the Crown is no different from the well established rule that conspiracy to commit an offence of strict liability requires proof of mens rea. The offences under the Misuse of Drugs Act are offences of strict liability, subject to the defence provided by section 28."

This view is developed further by Professor Smith in Smith and Hogan, Criminal Law, 8th edition, pages 285 to 286. Section 1 (2) of the Criminal Law Act which addresses the issue of mens rea in the context of a statutory conspiracy to commit a strict liability offence provides:

"Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of sub-section (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."

Mr Etherington QC for the Applicant submits that section 2 of the 1916 Act is a very different animal from the provisions of the Misuse of Drugs Act which were considered in Cuthbertson and McGowan . He says that section 2 of the 1916 Act is as general as Section 28 of the Misuse of Drugs Act is specific. He argues that there is no comprehensive list of offences to which Section 2 applies and the inference that the Act excludes conspiracy and was intended to is less easy to draw. What is more, the substantive offence under Section 1(1) of the 1906 Act does not require proof that a Defendant intended the payment to be corrupt. The issue is whether, in view of the jury, it did in fact have that tendency. In support of this submission, Mr Etherington relies on Wellburn 69 Cr. App. R. 254, where the Court of Appeal Criminal Division approved of the direction which the trial judge had given to the jury, i.e. that "corruptly" means "purposefully doing an act which the law forbids as tending to corrupt."

My task at this stage of the proceedings is to decide whether the case for the Applicant is an arguable one, justifying a substantive hearing before a Divisional Court, or whether it is, as Mr Perry submits, unarguable. In my judgment Mr Perry is right. I accept that the answer must be sought in the text of the particular legislation in issue. What that requires here is, in the first place, an examination of the statutory provisions in respect of the offence charged, namely conspiracy contrary to Section 1 (1) of the Criminal Law Act 1977. I respectfully adopt the words of Professor Smith:

"It is entirely clear....that the conspiracy is an offence separate and distinct from the ulterior offence."

It was and will continue to be open to the legislature to bring conspiracy to corrupt within the ambit of section 2 of the 1916 Act but it has not done so. Section 2 applies to "any proceedings against a person for an offence under the Prevention of Corruption Act 1906 or Public Bodies Corrupt Practices Act 1889..." falling within its express terms. As it happens, it is limited to cases where any money, gift or other consideration has been paid to or received by a person "in the employment of Her Majesty or any Government Department or public body". It is therefore not applicable to agreements to give or offers which are offences under Section 1 of the 1906 Act, nor to cases where the recipient is in the private sector. Also, its ambit is limited to contracts, thereby excluding, for example, planning permissions. I readily accept that the 1916 Act is a less sophisticated product of a different legislative era than the Misuse of Drugs Act but, upon detailed examination of the Acts of 1906 , 1916 and 1977, I am entirely satisfied that a statutory conspiracy to corrupt does not attract the presumption contained in Section 2 of the 1916 Act.

In the course of his submissions Mr Etherington advanced an argument based on the proposition that, in relation to this conspiracy to corrupt, no issue arises as to whether a Defendant had an intention to corrupt. This is the point which he sought to derive from Wellburn. I do not consider this argument to be correct. For one thing the Crown have to prove that the payment was given "as an inducement or reward" and, even more significantly, for a Defendant to be convicted of a statutory conspiracy, it has to be proved that he agreed with another person that a course of conduct should be pursued which, "if the agreement is carried out in accordance with their intentions", will necessarily amount to or involve the commission of an offence under section 1 of the 1906 Act. This also raises the point made by Professor Smith and aided by the reference to Section 1(2) of the 1977 Act, with which I have already expressed my agreement.

Finally I refer to a secondary matter referred to by Mr Etherington. For some inexplicable reason, the Applicant and others are charged in counts 8 and 9 with "Conspiracy to steal, contrary to Common Law". Mr Etherington submits, rightly, that no such offence exists, and that the charge ought to be a statutory conspiracy to commit an offence under section 1 of the Theft Act 1968. He seeks to take the point in this court because it is said, if all the counts of corruption and conspiracy to corrupt are flawed, on the Kebilene basis, the accused will be faced only with an indictment containing offences unknown to the law which would mean that there had been a defective committal, in effect a nullity in circumstances which could not know be retrieved by the trial judge granting leave to amend the indictment. It is for this reason that the Applicant is seeking relief not only in relation to the conspiracy count but also in relation the substantive accounts of corruption, even though the Crown have stated that they do not now intend to proceed on the substantive counts. In the event, my decision in relation to Count 1, the conspiracy count, has removed the ground upon which this argument was being advanced. However, it is appropriate that I should say that the argument was misconceived. Quite apart from the possibility of amendment by leave of the trial Judge as provided for in Section 5 of the Indictment Act 1915, as illustrated in relation to an offence assumed to be unknown to the law in Williams 1991 92 Cr. App. R. 158, any interference by this court on this aspect of the case would fall foul of section 29(3) of the Supreme Court Act 1981 concerning the jurisdiction of the Crown Court in matters relating to trial on indictment.

For all the reasons to which I have referred, this application for permission is refused.

(Legal Aid Taxation of Applicant's costs subject to filing of a Legal Aid

Certificate)