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Natji, R v  EWCA Crim 271 (14th February, 2002)
| || ||Neutral Citation Number:  EWCA Crim 271|
| || ||Case No: 200003310Y5|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE MOTA-SINGH QC
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||14 February 2002|
B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE BENNETT
HIS HONOUR JUDGE STEPHENS QC
| || |
| ||- v-|
| ||NACI VEDAT NATJI|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
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Mr I Krolick (instructed by Fletcher Dervish & Co) for the appellant
Mr F Sheridan (instructed by CPS) for the Crown
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Mr Justice Bennett:
- At his trial at the Crown Court at Southwark, the appellant faced two counts on the indictment. They were in identical terms save that they occurred at different times in 1996. The appellant was charged with corruption contrary to section 1(2) of the Public Bodies Corrupt Practices Act 1889. The particulars of the offences alleged that the appellant had corruptly promised £250 to Sean McKeon, an executive officer of the Home Office Immigration Nationality Department, as a reward for passing files in relation to two people to him.
- Mr McKeon was an executive officer in the Immigration and Nationality Department of the Home Office. The appellant had worked under him in a different department. The appellant became an administrative officer in Mr McKeon’s department but retired in 1989. In 1992 the appellant set up Premier Immigration Consultants. He and Mr McKeon set up a corrupt arrangement whereby Mr McKeon would pass to the appellant the home files relating to the appellant’s clients. The appellant would then destroy the file, thereby gaining considerable delay in immigration procedures, possibly of up to 2 years, for his clients. The client of the appellant would pay £500 which would be split equally between the appellant and Mr McKeon.
- Those facts were not in dispute in the Crown Court. Mr Krolick, on behalf of the appellant, submitted to the trial judge that there was no case to answer. In brief Mr Krolick’s submissions were that Mr McKeon was an officer of the Crown and hence an agent of the Crown. Accordingly the undisputed facts gave rise to an offence under section 1 of the Prevention of Corruption Act 1906. The 1889 Act, under which the appellant was charged, did not apply to officers of the Crown because the Crown was not a public authority within section 7 of that Act. Thus the appellant had been charged under the wrong Act. No amendment to the indictment was possible because the Attorney-General’s consent had not been obtained for a prosecution under section 2(1) of the 1906 Act. Mr Sheridan, who appeared on behalf of the prosecution, submitted that section 4(2) of the Prevention of Corruption Act 1916 which amended the expression “public body” in the 1889 Act was sufficiently wide to include the Immigration and Nationality Department of the Home Office and thus the 1889 Act was applicable.
- The trial judge decided in favour of the prosecution for the reasons advanced by Mr Sheridan. Mr Krolick then tendered certain advice to the appellant. He pleaded guilty and on each count was sentenced to a term of imprisonment of 9 months suspended for 2 years, to run concurrent.
- The appellant appeals with leave of the single judge.
- Before us Mr Krolick, for the appellant, advanced similar but rather more detailed grounds. Before we come to his submissions we think it necessary to set out the statutory provisions in question.
Section 1(2) of the 1889 Act provides:-
“Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of a misdemeanour.”
- Section 2 of the 1889 Act provided that the penalty for such an offence after conviction on indictment is imprisonment for a term not exceeding 2 years or to a fine net exceeding £500 or to both. The maximum term of imprisonment is now 7 years and the fine is unlimited.
- Section 7 of the 1889 Act provides:-
“In this Act –
The expression “public body” means any council of a county or county [sic] of a city or town, any council of a municipal borough, also any board, commissioners, select vestry, or other body which has power to act under and for the purposes of any Act relating to local government, or the public health, or to poor law or otherwise to administer money raised by rates in pursuance of any public general Act, but does not include any public body as defined existing elsewhere than in the United Kingdom:”
- The relevant provision of section 1(1) of the Prevention of Corruption Act 1906 provides:-
“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 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 and liable, so far as this case is concerned, on conviction on indictment to a term of imprisonment not exceeding 2 years or to a fine not exceeding £500 or both.
The maximum sentence of imprisonment is now 7 years and the fine is unlimited.
- Section 1(3) of the 1906 Act provides:-
“A person serving under the Crown or under any corporation or any borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act.”
- Section 4 of the Prevention of Corruption Act 1916 provides:-
“(1) This Act may be cited as the Prevention of Corruption Act 1916, and the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906, and this Act may be cited together as the Prevention of Corruption Act 1889 – 1916.
(2) In this Act and in the Public Bodies Corrupt Practices Act 1889, the expression “public body” includes in addition to the bodies mentioned in the last mentioned Act, local and public authorities of all descriptions [and companies which in accordance with Part V of the Local Government and Housing Act 1989 are under the control of one or more local authorities].”
The words in square brackets were added by the Local Government and
Housing Act 1989.
- It is common ground between Mr Krolick and Mr Sheridan that the expression “public body” in section 7 of the 1889 Act does not include the Crown. The point at issue before the trial judge and before us is whether the words “… and public authorities of all descriptions” in section 4(2) of the 1916 Act include the Crown. It is the prosecution contention, accepted by the trial judge, that those words are wide enough to include the Immigration and Nationality Department of the Home Office. As we understood the concise submissions of Mr Sheridan he accepted that Mr McKeon was an officer serving under the Crown at all relevant times. Mr Sheridan further conceded that it would have been better had the appellant been charged under section 1(1) of the 1906 Act, for there is no doubt that had that been done the appellant would have had no defence whatsoever. Mr McKeon, being a person serving under the Crown, was an agent within the meaning of the 1906 Act.
- The appellant’s case is that the Crown, or a government department, is neither a local or a public authority and that the 1889 Act does not apply therefore to civil servants. The appropriate statutory provision relating to civil servants is section 1 of the 1906 Act. The appellant was not charged under that Act and the Attorney General’s permission was not sought for a prosecution thereunder.
- Mr Krolick referred us to R v Manners, R v Holly  2 WLR 709, where an employee of the North Thames Gas Board and a regional director of a public works company were charged with corruption under the 1906 Act in respect of a gift or consideration made to the boards’ employee by the company director. The trial judge ruled that the Gas Board was a “public body” within the meaning of the 1889 to 1916 Acts, as defined by section 4 of the 1916 Act. The defendants were convicted. On appeal it was argued that the judge had been wrong in law in ruling that the Board was a public body for the purposes of the 1916 Act. The appeals were dismissed. It was held by the Court of Appeal that since the Gas Board had been constituted under the Gas Act of 1948 to perform public or statutory duties for the benefit of the public and had not been operated to make a private profit it was a “public body” within section 4(2) of the 1916 Act and accordingly the judge’s ruling had been correct.
- The submission on behalf of the defendant to the Court of Appeal in that case was that the Act under which the Gas Board was empowered to act did not specify that it was a public body and accordingly it did not come within the 1916 Act. Lord Justice Lawton said at page 712:-
“The question for us has been what the words “public body” meant in 1916, not what the words “public authority” meant in statutes passed many years later. The use of the same or similar words in later statutes may be of some help; but we have reminded ourselves that many considerations affect the wording of statutes. This is illustrated by the reference to the Prevention of Corruption Acts 1889 – 1916 in section 62(2) of the Civil Aviation Act 1971. It seems to us likely that this reference was made because the parliamentary draughtsman knew of the judgment of Winn J. in R v Newbould  2 QB 102, which was strongly relied upon by Mr Beezley before this court. That judge had ruled that the National Coal Board was not a public body for the purposes of the Prevention of Corruption Act 1889 to 1916. He had based his ruling upon the absence of any reference to “public authority” in the Coal Industry Nationalisation Act 1946 and the application of the ejusdem generis rule.”
- The Court of Appeal held that Mr Justice Winn was wrong not only so far as the construction of the particular Act was concerned but also in respect of the ejusdem generis rule.
- At page 713 Lord Justice Lawton continued:-
“The Act of 1906 extended the ambit of the act of 1889 to agents; persons serving under the Crown were deemed to be agents within the meaning of this act. The Act of 1916 was an amending one. It was passed rapidly through parliament following some criticisms made by Low J. of the penalties described by the Acts of 1889 and 1906: see “The Times”, September 18, 1916. Within a few weeks a draft bill was presented to parliament; it had two clauses later to become sections 1 and 2 of the Act of 1916. Section 4 (2) got into the Act as a result of an amendment moved by Lord Buckmaster in the House of Lords. The reason he gave for moving the amendment is irrelevant to its construction; but nothing in what he said has caused us to hesitate over what meaning we give to the words “local and public authorities of all descriptions” in the sub-section.
By 1916 the words “public authorities” have often been construed by the courts for the purpose of applying the Public Authorities Protection Act 1893. In the Johannesburg  P65, the issue was whether the Tyne Improvement Commission was a public authority for the purposes of that act. Sir Gorrell Barnes P. examined the statutes under which the commission performed its duties. It performed public duties; its powers were directed to public ends; it did not concern itself with making gain or profit saving so far as was necessary to enable it to perform its public duties in accordance with the Acts constituting it. This case was considered by the House of Lords in Griffiths v Smith  A.C. 170 and approved: see the speech of Lord Porter at pp. 205-206. These two cases, taken together, support the definition of a public authority given in Halsbury’s Laws of England 3rd Ed., Vol 30 (1959), para 1317:
“A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform, and which performs those duties and carries out its transactions for the benefit of the public and not for private profit”.
When this definition is applied to the North Thames Gas Board it is clear that it is a public body. It was constituted pursuant to section 1 of the Gas Act 1948 to…”.
Lord Justice Lawton then set out the relevant provision of the Gas Act.
- The Defendant appealed to the House of Lords which dismissed the appeal and wholly confirmed the Court of Appeal’s judgment.  2WLR 178.
- We were also referred to R v Barrett (George)  1WLR 946. The defendant was appointed an additional superintendent registrar of births, deaths and marriages and while acting in that capacity, he accepted £4 for arranging a marriage ceremony at an early date. He pleaded not guilty to a count alleging that he, being an additional superintendent registrar, and an agent of the Crown within the meaning of the 1906 Act, corruptly accepted money as an inducement or reward for doing an act in relation to his principal’s affairs. The trial judge ruled that as a matter of law the defendant was, in the performance of his duties, “a servant of the Crown”. The defendant thereupon changed his plea to one of guilty. He appealed. The appeal was dismissed. It was held that the registration of births, deaths and marriages was a function of central government and the effect of a celebration of marriage on the personal status of the parties to a marriage was of concern to the state. It further held that an additional superintendent registrar acted on behalf of the Crown in the performance of his duties and was appointed so to act under the provisions of the Registration Service Act 1953. Accordingly the defendant was serving under the Crown within the meaning of section 1 of the 1906 Act and was thus an agent within the meaning of the 1906 Act.
- In that case the Court of Appeal rejected the defendant’s argument that he was not a servant of the Crown and that he was an independent office holder appointed for the purpose of carrying out the prescribed statutory duties assigned to his office. It is thus not directly relevant to the instant case. However, in our opinion, some assistance can be derived from a passage in the judgment of Lord Justice James who gave the judgment of the Court, at page 951:-
“The registration of births, deaths and marriages is one of the functions of central government. The Registrar General is appointed under the Great Seal. The celebration of marriage affects the status of the parties to the marriage and change of personal status is the concern of the state. The duties of an additional superintendent registrar are performed by him on behalf of the Crown, it being necessary for the Crown to exercise its function through some human agency.”
- Mr Krolick therefore submitted that the Crown did not fall within the definition of “public authority” set out in Halsbury’s Laws of England referred to by Lord Justice Lawton at page 713 of Manners. The Crown represents the state and carries out its duties on behalf of the state.
- Mr Sheridan emphasised that the definition of “public body” in the 1916 Act was “public authorities of all descriptions” (emphasis supplied). He submitted that the definition of a public body set out in Manners encapsulated the role of the Immigration Department as part of the Home Office. The Home Office was a body which has, he submitted, a public or statutory duty to perform for the benefit of the public and clearly does not act for profit. Mr Sheridan sought to persuade us that the absence of any reference to “the Crown” in section 4(2) of the 1916 Act is irrelevant because the wording of the sub-section is sufficiently wide to include the Crown.
- Mr Sheridan further drew our attention to sections 6 and 7 of the Human Rights Act 1998. He submitted, correctly, that the definition of a “public authority” in that Act included “any person certain of whose functions are functions of a public nature”- see section 6(3)(b) of the Human Rights Act 1998. Accordingly it was submitted that the actions and decisions of a member of the Immigration Department, made in respect of the statutory duties of that Department are subject to review under the Human Rights Act because those duties are carried out by a person in the employ of a “public authority”.
- So far as the definition is concerned under the Human Rights Act 1998 no doubt Mr Sheridan is correct. But we do not think that helpful in construing the definition of the expression “public body” or “public authorities of all descriptions” under section 4(2) of the 1916 Act. As Lord Justice Lawton said in Manners in the passage at page 712 to which we have referred, the question for this court is what the words “public authority of all descriptions” meant in 1916.
- There is no doubt in our view that section 7 of the 1889 Act did not bring the Crown within the expression “public body”. Furthermore, unless the Crown can be brought within the words “public authorities of all descriptions” within section 4(2) of the 1916 Act, the 1889 Act does not apply to the instant case.
- Next we move to the 1906 Act. We observe that section 1, at least in so far as the Crown is concerned, was not an amendment or extension of the 1889 Act but was a free standing measure. We repeat that it is common ground in this case that Mr McKeon was an agent of the Crown within the meaning of the 1906 Act and thus a prosecution could have been brought under that Act. Thus if, as we believe to be the case, section 1 of the 1906 Act applies to civil servants because they are agents of the Crown, we find it difficult to understand why the draughtsman of section 4(2) of the 1916 Act should have intended to have included the Crown within the expression “public authorities of all descriptions”. There was no need to do so because the position of civil servants was already taken care of by section 1 of the 1906 Act. It is to be noted that there is no mention whatsoever in section 4 of the Crown at all. Furthermore we do not consider that the words “public authorities of all descriptions” by necessary implication includes the Crown.
- Further support can be gained for that view from a consideration of section 2 of the 1916 Act, which provides:-
“Where in any proceedings against a person for an offence under the Prevention of Corruption Act 1906 or the Public Bodies Corrupt Practices Act 1989 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 a public body by or from a person, or agent or a person, holding or seeking to obtain a contract from [Her] Majesty or any government body, the money… should be deemed to have been paid and received corruptly as such inducement or reward as is mentioned in such Act unless the contrary is proved.”
It is apparent from a consideration of section 2 of the 1916 Act that the draughtsman is making a distinction between the Crown and any government department and “ a public body”. If the words in section 4(2) of the 1916 Act “public authorities of all descriptions” included the Crown or a government department then the wording of section 2 in so far as the Crown and any government department were referred to was unnecessary.
- Accordingly, we are of the view that the definition of “public body” in section 7 of the 1889 Act, as amended by section 4(2) of the 1916 Act, does not include a government department and/or the Crown. Mr McKeon was an agent of the Crown. The appellant, with leave from the Attorney-General, ought to have been prosecuted under section 1(1) of the 1906 Act. Accordingly the appellant’s conviction is unsustainable. The appeal must be allowed and the conviction set aside.
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