Democracy in the Dark: It’s time to regulate digital campaigning

Sam Power, Lecturer at the Centre for the Study of Corruption, has recently co-authored a report for the Electoral Reform Society titled ‘Democracy in the Dark: Digital Campaigning in the 2019 General Election and Beyond’ with Dr Katharine Dommett, University of Sheffield. The full report can be found here – an extract from the Executive Summary is below. 

Over the last few years, calls for the regulation of digital campaigning have been growing in the UK. Committees in the House of Commons and Lords, groups of MPs, regulators, think tanks, charities and campaign groups have been stressing the need for urgent electoral reform.  

Yet nearly a year on from the 2019 general election campaign, the only concerted action taken by the government has been to launch a consultation on digital imprints. This change, first recommended by the Electoral Commission back in 2003, is long overdue, but it also only scratches the surface of the problem. And at a time when the Electoral Commission is more important than ever – needing new powers and competencies – we have witnessed growing threats to its future.  

In this report, we look at the case for strengthening – not stymying – democratic oversight by examining what we know about the use of digital technology at the 2019 general election. Posing five questions, we show why there is a need for urgent action that extends far beyond digital imprints.  

Specifically, we ask: 

  • What was being spent? 
  • Who was campaigning? 
  • Who was seeing what? 
  • How was data being used? 
  • What was being said? 

Looking at examples from the 2019 general election, and presenting new analysis of Facebook and Google’s advertising archives, we demonstrate the case for reform. We also review the recommendations from a series of reports and inquiries to outline what has so far been proposed to address these trends. Through this report, we shed fresh light on the need for urgent action and the demand for far-reaching reform. 

You can read the full report and findings here: ‘Democracy in the Dark: digital campaigning in the 2019 General Election and beyond.’ 

FinCEN money laundering files raise questions for UK

With the publication of the latest set of leaked papers revealing global money laundering on a grand scale, known as the FinCEN Files, Professor Robert Barrington of the Centre for the Study of Corruption looks at some of the implications for the UK.

Like so many of the global money laundering scandals, the UK plays a disproportionately prominent role in the FinCEN Files.  There are apparently more UK-registered companies in the Files than those from any other jurisdiction.  We do not learn much that is new about the UK, but this is a timely reminder that the UK still has a big problem to fix.

The Files highlight some awkward issues for the UK: whether the political will really exists to prevent the UK being a safe haven for dirty money; the risks when that money enters British politics; the complicity of the UK’s Overseas Territories and Crown Dependencies; the involvement of an army of lawyers, accountants and other professionals who are cogs in the system; and the central role of British banks, to whom the government has contracted out much of the nation’s anti-money laundering defences.

This ‘privatisation’ of the UK’s AML defences is particularly troubling.  The FinCEN Files suggest that banks too often turn a blind eye to money laundering, presumably because the institutions as a matter of culture, or a sufficient number of individuals within the banks, believe the financial gains outweigh the risks of being caught.  Giving those banks a central role in the nation’s anti-money laundering defences thus places a huge conflict of interest at the core of the system.  It might not matter if we could be confident everyone is on the same side: but leaks like the FinCEN Files reveal that is not always the case.

There is a reasonable argument in favour of a ‘partnership’ that exchanges information, but this has recently been extended into formalising the banks’ role in helping to set the national economic crime strategy.  The Economic Crime Strategic Board contains government Ministers, law enforcement officials, banks – and no independent participants, let alone civil society.  It is poor governance and undermines public confidence in the system, as well as potentially having the Economic Crime Strategy directed by those who are themselves implicated in serious economic crimes. 

What should be done? The government’s own Economic Crime Plan and Anti-Corruption Strategy lay out the threats of money laundering, and the benefits to the UK of tackling money laundering.  They contain many good ideas, as do other government announcements since the Anti-Corruption Summit of 2016.  But in several key areas there has been slow implementation and weak enforcement.

This latest scandal is brought into sharp relief by Brexit and the UK’s need to work out what it stands for: willing to attract suspicious money as part of its economic planning, or operating to high standards backed up by adequate regulation and enforcement.  The UK will very soon no longer be bound by the EU’s rules, and has some major decisions to make about its new direction.

Public spending must be regulated, even in an emergency: reflections from the Philippines

In times of crisis, rules regulating the procurement process and the disbursement of public funds are often discarded, to speed up the acquisition of necessary goods and the provision of services. But, argues Nelia Lagura Prieto, anti-corruption lawyer and CSC alumnus, this makes it far too easy to divert emergency funds away from the intended beneficiaries and into the hands of a few opportunistic entities.  

On 23rd March 2020, in view of the threats to public health brought about by the coronavirus pandemic, the Philippine Congress placed the entire country under a state of national emergency through Republic Act No. 11469 (R.A. 11469). The said law granted the President emergency powers necessary to carry out the declared national policy (R.A. 11469, Section 4).  Among those powers are: 

1)  the power to discontinue appropriated programs or projects of any agency of the Executive Department and utilize the savings generated to augment the allocation for any items necessary to address the CoVid19 emergency; and 

2) the power to procure said items (e.g. personal protective equipment (PPEs), laboratory equipment and their reagents, medical equipment and devices, and medical supplies) in the most expeditious manner, exempt from the country’s procurement law.   Resolution 06-2020 of the Philippine Procurement Policy Board (GPPB) reveals that these emergency procurements do not need to undergo competitive bidding. Written formal offers are not even necessary.  Under the interim rules, verbal agreement on the price and compliance or commitment to comply with legal, technical and financial requirements of the project are sufficient bases to recommend award to a supplier, manufacturer, contractor or consultant (section 3.3 of GPPB Resolution 06-2020).

With the suspension of bidding requirements, relevant government agencies immediately awarded contracts for much-needed medical and laboratory equipment and supplies through the so-called emergency procurement mechanism.  Several of these contracts and transactions have become controversial.

Overpriced Personal Protective Equipment (PPE)

The Department of Health (DOH) purchased 1 million sets of PPE worth 1.8 billion pesos at 1800 pesos (around USD37) per set.  A Senate inquiry on the alleged overpriced PPE and test kits revealed that locally sourced PPE would have cost as little as 400 pesos (around USD8.25).  It was also disclosed that the Office of the Vice President (OVP) who, as of March had already distributed 32,000 full sets of PPE, acquired them at only 397 pesos per set from a local supplier.  

One senator has therefore claimed that the government could have saved 1.4 billion pesos had DOH contracted with local suppliers.  The DOH purchase is an anomaly even under the emergency rules, since procurements are still subject to a requirement to negotiate the most advantageous price to the government based on existing price data of the agency or on prevailing market prices, even in emergencies. 

In addition to the unconscionable price difference between those purchased by DOH and by the OVP, it was also reported during the Senate hearing that 727 million pesos’ worth of contracts for PPE and vitamins were awarded to one company despite it having been blacklisted.  

Release of Covid-19 Funds to Health Care Institutions (HCI) under the Interim Reimbursement Mechanism (IRM) 

In early 2020, when the world started to panic about CoVid19, the Philippine Health Insurance Corporation (PhilHealth), a state-run agency under the DOH, began providing funds for HCIs through its IRM. While called a reimbursement, IRM is really a cash advance scheme to provide available funds to HCIs in times of emergency.  

The Senate inquiry revealed that as of April and prior to the dissemination of standard operating procedures for the release of funds through IRM, PhilHealth had already  released 9.29 billion pesos of the 30 billion pesos allocated to 279 HCIs for hospital assistance.  The initial release of funds to several HCIs did not correspond with the prevalence of Covid19 in the areas covered.  Two hospitals from Davao in Mindanao received the first and third-largest sums: 326 million pesos for Southern Medical Center and 209 million pesos for Davao Regional Medical Center.  The allocation raised questions since Davao had only 2,600 cases compared to 144,000 in the National Capital Region (NCR)  and 20,829 in Central Visayas.

PhilHealth chief, retired general Ricardo Morales, explained that when they started releasing funds through IRM prior to the guidelines, there were as yet no established  concentration areas of Covid19 cases.  They instead used the 90-day historical claims of HCI beneficiaries to determine the amount to be released.  He also stressed that the cash advances were subject to liquidations.  However, only 1 billion pesos have been liquidated and there is no evidence that unused cash advances have been returned or should be returned.

It appears that PhilHealth officials responsible for the release of the funds prior to the guidelines exercised an almost unrestricted discretion in deciding which hospitals should receive funding and how much.  As a result, funds allocated for Covid-19 response were disbursed to HCIs that until now have yet to deal with Covid-19-positive patients. Among them is B. Braun Avitum (a dialysis center) which received 45 million pesos from PhilHealth’s IRM. B. Braun Avitum despite not admitting Covid-19 patients. 

The release of funds in such a highly discretionary manner has led to an outcome which largely defeated the intended purpose of the funds.  While HCIs with no, or just a few, Covid-19 cases have plenty of response resources, those with patients in excess of their bed capacity have to make do with what they have. Many patients are denied hospitalization because of this flawed allocation of resources.

Even in times of emergencies, government spending must still be governed by reasonable rules that balance urgency and propriety.  In countries like the Philippines where national emergencies brought about by calamities such as typhoons and earthquakes are common, laws should be put firmly in place to avoid recurring fund wastage due to negligence, lack of wisdom or outright corruption.

Sri Lanka election result paves way for state capture

Recent elections in Sri Lanka open the way for major constitutional reform by a party and President that have already indicated their plans to remove key checks on power. Sankhitha Gunaratne, Senior Manager – Advocacy at Transparency International Sri Lanka, currently taking our Master’s in Corruption and Governance, analyses the risks of state capture.

The 5th of August saw the Parliamentary Election held in Sri Lanka with a 70% voter turnout even amidst fears of COVID-19 transmission. Twice postponed due to the pandemic, this was a critical election that would enable President Gotabaya Rajapaksa to form a government after his victory in November last year. The elections were largely peaceful, in spite of many abuses of State resources taking place during the campaign, constituting election violations.

The President’s party, the Sri Lanka Podujana Peramuna (SLPP), secured 145 out of 225 total seats in Parliament, leaving it in a strong position to form alliances that would result in two-thirds support in Parliament. This is especially significant as it provides the necessary majority for the government to amend provisions of the Constitution. The SLPP has already indicated that it would repeal the 19th Amendment to the Constitution, which re-introduced the two-term limit for the Presidency and strengthened the Constitutional Council that recommends and approves appointments to independent commissions, the higher courts and other key posts – aspects that Mahinda Rajapaksa’s 2005-15 government had removed and weakened. The 19th amendment also enshrined the right of access to information as a fundamental right, a key accountability tool that citizens across the country have availed themselves of in relation to varied issues ranging from access to water to accessing draft laws. Key officials have, however, indicated that the independent commissions and the right to information will not be affected – though these undertakings are yet to be proven right.

President Gotabaya Rajapaksa has now appointed his brother former President Mahinda Rajapaska as the Prime Minister, leading to the interesting dynamic of two members of the same family – not for the first time in Sri Lanka – heading the executive and legislative branches of government. The appointment does not violate any law, as former President Mahinda Rajapaksa ran and was elected for his parliamentary seat in both subsequent general elections(after being defeated for a third-term presidency in 2015). The Constitution empowers the President to appoint as Prime Minister, the person who, in the opinion of the President, is most likely to command the confidence of Parliament.

The Prime Minister also holds the portfolios of Finance, Buddhasasana, Religious & Cultural Affairs and of Urban Development, Water Supply and Housing Facilities. His son Namal Rajapaksa is the Minster of Youth & Sports, and his brother Chamal Rajapakse holds the position of Minister of Irrigation.

Markers of State Capture?

State capture is defined as “A situation where powerful individuals, institutions, companies or groups within or outside a country use corruption to shape a nation’s policies, legal environment and economy to benefit their own private interests”. The plans for Constitutional amendments combined with the neutralisation of dissenting voices bodes ill for Sri Lanka, foreshadowing a future as a captured state.

A two-thirds majority in Parliament that allows virtually unfettered Constitutional amendments to remove checks and balances, on top of the threat to the separation of powers caused by two brothers heading the executive and the legislature combined with close family members in key positions of power, makes a dangerous cocktail that raises red flags for state capture. The electoral victory also comes against a background of increasing militarisation of the State where key public positions have been filled with military personnel (see examples here, and here) and a Presidential Task Force has been appointed ‘to build a secure country, disciplined, virtuous and lawful society’ consisting entirely of military and police personnel, with a broad mandate that even allows the provision of instructions to public officials. Dissenters including lawyers, journalists, civil society and activists have come under threat, scrutiny and arrest in an alarming trend recognised by Human Rights Watch and others in its statement on 29th July this year.

While they do not necessarily act of one accord, the Rajapaksa family and their close contacts have been implicated in many corruption scandals during their last stint in power (see here, here and here and here) giving credence to a general perception in Sri Lanka that politicians run for office with the specific intention of benefiting from public funds. However, these scandals do not seem to have discouraged voters from electing to office those implicated. It is almost an expectation among citizens that government contracts will be awarded based on what are colloquially named ‘komis’ (commissions). It is particularly concerning therefore, that the resounding mandate given by the people almost seems to endorse a level of state capture. Government procurement therefore will continue to be an at-risk area for potential grand corruption that must be subject to scrutiny especially in the context of potential state capture.

The former government that was in power in 2015-19 was originally elected on a ‘good governance’ mandate. It lost its credibility in the Central Bank Bond Scam case where the son-in-law of the then Governor of the Central Bank was alleged to have benefited from insider information about an unprecedented issue of government bonds, at a major loss to the public purse.

The track record of that government was somewhat mixed, however. In addition to promulgating the 19th Amendment to the Constitution, some strides towards accountability were made when the then Finance Minister – also implicated in the bond scandal – was forced to step down. During the same period, special High Courts were set up to deal with corruption. The Chief of Staff of President Maithripala Sirisena was arrested and subsequently convicted for accepting a bribe of Rs. 20 million. All these factors demonstrated a certain level of accountability. Yet, that party and its successor party suffered a resounding defeat in this election.

This leads us to ask whether issues relating to corruption have ceased to swing votes in Sri Lanka, at least for the moment. As Robert Barrington points out, could it be that the ‘currency’ of corruption as an electoral issue is eroding, leading to voters making their choices on other issues, since they assume that anyone who gains power will inevitably be corrupt?

While the judiciary as the third arm of government has also been the target of political ire in the past, a robust judiciary could still act as the last bastion of hope for Sri Lanka. Anti-corruption tools such as asset declarations and the right to information must still be used and defended. Independent critical voices will be more important than ever, to call out any attempts to roll back the measures put in place to protect citizens’ freedoms and public resources – the Constitution of Sri Lanka being prime among many.

 

 

No Rest for the Wicked: Match-Fixing in the age of Lockdown

immo-wegmann-DX3_dXuHVl8-unsplashThe Covid-19 crisis has led some sports to innovate by holding remote events. But that has also created new opportunities for corruption and match-fixing. Billy Pratt, currently taking our Master’s in Corruption and Governance, looks at match-fixing allegations in a remote darts match – and implications for how the sports industry can adapt to new conditions.

Following several months of Covid-19 related disruption, sports fans have been treated to a gradual return of live sport to their TV screens. Whilst the return of industry dominators such as football made news, a few others found ways of continuing despite strict lockdown regulations. The online suitability of esports lead to a boom in viewership for competitive gaming. Whilst not a sport in the purist sense, WWE were quick to move their wrestling shows to a crowd-less studio and never stopped. Then we have darts, which started to stage matches remotely with cameras in players’ homes to record them throwing darts at their own boards. Using this format, several professional events were hastily organised and streamed online, providing entertainment for sports-hungry fans at home and something to do for darts players with time on their hands.

Whilst these events were generally seen as a success, recent news has dampened the mood with two players, Wessel Nijman and Kyle McKinstry, being charged with match-fixing during a remote event in April. Nijman has confessed to the charges, whilst McKinstry is expected to appeal. Despite the occasional rumours, darts is not a sport typically associated with corruption, with only one confirmed betting-related match-fixing case in its professional history. The 2017 UK Sports Integrity Index even went as far as to name darts as the professional sport with the most integrity. For this reason, it is pertinent to question why this happened, if the move to a remote format was responsible and if so, what lessons anti-corruption efforts in professional sports should learn. With the winter months to come and another lockdown possible, sports fans may find themselves yet again at home watching darts being played remotely via video link.

Professional Uncertainty

The most obvious impact of the pandemic on sports as an industry has been the reduction of events, slashing earning opportunities for players. Whilst those at the top level of professional sports are well documented for their lucrative wages, the situation for those lower down is much less stable, even during normal times. Darts is no exception, with the number 1 ranked player Michael Van Gerwen earning over £1.5 million in prize money over the past 2 years whilst Nijman and McKinstry only earned several thousand each in the same time period. There are several papers within corruption literature which explore the relationship between salary and the incentive to corrupt. Within the realm of sport, Hill (2015) finds athletes are much more likely to match-fix later in their careers when they have greater awareness of their diminishing window for earning. With the pandemic postponing 14 PDC Development Tour events (which Nijman frequently played in), this may have been a factor. Given that the most high-profile remote darts tournament, the PDC Home Tour, had zero prize money on offer, it does not take an anti-corruption expert to see the allure of a match-fixing offer.

Gambling Increase

Whilst sports betting decreased during the UK lockdown as a function of there being less sport to bet on, sports corruptors quickly adapted. For example, one set of match-fixers managed to fool several well-known bookmakers into offering odds on an entirely fabricated Ukrainian football tournament. An estimated £100,000 of bets were placed before the tournament was revealed to be fake. What little sport remained saw huge betting interest with a 2,000% increase in bets placed on the basketball leagues of Tajikistan and Taiwan as well as in Belarusian football. Darts was one of the few sports that continued during this time and became a key asset for bookmakers, with several gambling websites even streaming these remote events. Match-fixing is often carried out with the intention of making or laundering money through gambling, and with Nijman and McKinstry being charged on the back of suspicious betting patterns, it is now clear that darts was targeted by match-fixers. Darts’s status as one of the few sports still available to bet on would only have made it a more attractive for fixers.

Remote Anti-Corruption Regulation

Professional darts is governed by the Darts Regulation Authority (DRA), who can be considered proactive in their anti-corruption work. They have confidential email addresses and hotlines for reporting corrupt approaches, clear and easy to follow regulations on betting and match-fixing [11] and partnerships with companies such as SportRadar to use the most refined match-fixing detection tools . These measures may partly explain why darts has rarely faced corruption issues before, and these measures also helped lead to Nijman and McKinstry being caught, for which the DRA deserves credit. However, the DRA’s usually effective approach failed to prevent corruption from taking place in this case and we must question why. With the change of format leading to players staying at home rather than travelling to a physical venue and interacting with officials, the DRA must examine if their anti-corruption efforts do enough to prevent match-fixers accessing and convincing players to fix when they are playing remotely. Match-fixing often depends on the ability of the fixer to communicate with the fixing player to relay information or instructions. In a physical tournament setting, such communication can be monitored or prohibited and there is evidence of this taking place with 2 players being officially warned for using internet devices during an event in 2017. During the remote events, officials were not only unable to physically monitor potentially corrupt communication but could not even prevent players from using internet devices capable of outside communication – indeed, the event relied on the players having internet access. The DRA’s anti-corruption approach was understandably designed for a pre-pandemic world, and must change before any more remote events are staged.

Going Forward

This case should prove instructive for a sports industry that will continue to be impacted economically until major gatherings are permitted again. The boom in esports viewership has led to the normalisation of watching two people playing video games against each other over the internet and betting on it. Even outside of a pandemic situation, remote darts events still provide content for bookmakers without having to pay for the logistics of a full sporting spectacle, but if they can’t be secured from corruption risks, these remote competitions may have to stop. The story of Nijman and McKinstry shows that even the more vigilant anti-corruption approaches need to be re-thought for our new conditions.

 

What does the UK’s ‘algoshambles’ tell us about corruption?

Robert Barrington, Professor of Anti-Corruption Practice at the Centre for the Study of Corruption (CSC), looks at the implications of the UK’s application of an algorithm to final-year exam results at schools – and detects some of the primary ingredients for corruption.

Many in the anti-corruption community have been puzzling in recent years about the relationship between tech advances and corruption.  There are some clear positives: such as greater transparency enabled by easier and more instant flows of information; and the arming of anti-money laundering officials with new tools for investigations. But our instincts also seem to say that there is something profoundly problematic going on, even if it is hard to pin down what that is. The tech revolution can have negative consequences for issues such as human rights, democracy, government accountability and basic freedoms; these have always been closely related to corruption, but is it an intellectual leap too far to state that the emerging ‘algocracy’, as it is increasingly known, has a tendency to be corrupt?

We have witnessed the unregulated power of large companies whose complexity, innovation and corporate governance prevents traditional accountability; abuses of surveillance tech by governments and law enforcement authorities; very high spending by tech companies on political and regulatory lobbying; and ordinary people feeling helpless in the face of the power that tech gives to both companies and governments.  A heady cocktail, but not fitting traditional definitions of corruption such as ‘the abuse of entrusted power for private gain.’

My colleague at the CSC Roxana Bratu has been researching this; and other deep thinkers such as Luminate’s Martin Tisne have put in the intellectual hard yards to bring us closer to understanding what we are really dealing with.  The UK’s A-level scandal seems to bring a few of these strands together.

For those unfamiliar with the scandal, here is a re-cap.  In the absence of pupils sitting final school year exams known as A-levels due to Covid-19, the UK’s constituent governments (education is devolved) decided to use an algorithm to generate the exam results.

The Financial Times described the outcome as an ‘algoshambles.’  The algorithm was designed by the exam regulators, under governmental instruction, to replicate the national patterns of previous years.  Everyone involved was well-intentioned.  But the outcome was indeed a shambles: elite private schools were favoured; brilliant pupils from historically poorly-performing schools were automatically marked down; many pupils missed out on grades their track records had every reason to suggest they would achieve.  The national pattern was accurately replicated and the government’s aim apparently achieved; but at the cost of many cases of individual injustice.

Why talk of corruption in this context?  The reason is simple: this gives us an insight into what government by algorithm could look like, and it looks very similar to a corrupt autocracy.  Here are five corruption-flavoured take-aways from the UK’s A-level scandal which lead to that conclusion:

  1. Algorithms make government easier.  They work brilliantly for central planning and nationwide implementation of centralised policy.  Governments will therefore like them and want more of them.  They give governments more control.
  2. The blanket application of an algorithm, however well-intentioned, inevitably smooths out the nuance of individual cases; even though society is made up of individual citizens with individual circumstances, applying algorithms in such a way is a blunt but effective mechanism.
  3. Inequality can easily be worsened: it may be by accident rather than design, but very clearly, those who are already privileged or advantaged can see that significantly increased if the algorithm works only marginally in their favour.
  4. Transparency allows citizens whose lives are affected by algorithms to assess whether they are designed and applied fairly; whereas the absence of transparency leaves the victim helpless and with little recourse except through a complex, expensive (in time, and possibly money if legal challenges are involved) and soul-destroying process of appeals.
  5. Governments and agencies that use algorithms are, however, very reluctant to be transparent about them; in this case, an apparently deliberate secrecy.  And even being transparent may leave citizens confused as to how interpret or challenge an algorithm.

That all sounds as though we need good algorithms sensitively applied, not bad ones that have negative consequences.  But what – if anything – does this tell us about corruption?

One obvious thing to do when looking for abuses of power is to look at where power is concentrated.  In this case, very high levels of power (over final school exam results, potentially determining an entire career – especially if it makes the difference to being able to study medicine or going to a top university) were concentrated in the exam regulator.  Of course, that is the case in normal years, but in the Covid-19 situation, the regulator was not only deciding on exam results, but deciding on the basis of its own discretionary judgement, under governmental instruction, rather than marking an exam paper.  It was above the norm – a super-concentration of power accompanied by an absence of transparency and limited accountability (to the Minister whose policy was complicit in the shambles).

This concentration of power created a severe problem – in part, because it also represented a transfer of power away from the student sitting an exam.  In other words, there was a big power gap through simultaneously taking away power from citizens and granting more power to the government.  Perhaps the most positive thing for the A-level students was that the shambles was so obvious that it was clear the algorithm’s findings had to be over-turned.  Around forty percent of pupils received grades from the algorithm that were lower than the teacher predictions that were eventually used. It is easy to envisage a scenario in which the impact was on perhaps five percent of the cohort, which could have been swept under the carpet.  And who knows what other algorithms are already in place, and already operating like this?

What is missing here with regard to standard definitions of corruption is the ‘abuse’ of the power and any ‘private gain’.  On the contrary, the exam regulator (and/or the relevant government minister) seems to have made a massive cock-up.

So this case may not be an example of corruption, but it should send a chilling warning.  Governments in mature democracies in advanced economies can play fast and loose with algorithms in areas that have a major impact on the lives of citizens.  We have now witnessed the enormous power of these algorithms.  Imagine what an abuse of such power would look like; and imagine the possibilities for private gain of an algorithm governing access to or exclusion from healthcare, finance, the best jobs, etc.  And note also that the culpable minister only performed his u-turn to by-pass the algorithm after sustained public and media pressure.

The conclusion has to be that such algorithms are not inevitably corrupt; but the potential for abuse of power and private gain gives a glimpse of what corruption may come to look like in the twenty-first century.

 

No Filter: Children, Social Media and Revealing Questionable Wealth

Corrupt elites usually invest a lot of resources in hiding their illicit funds, but that clashes with their tendency – or that of their relatives – to brag on social and regular media about their riches. Joseph Sinclair and Umedjon Majidi, current students on our MA Corruption and Governance course, look at the increasing use of social media in money laundering and corruption investigations.

When Naulila Diogo flew from Luanda to New York, she might not have expected the furore that followed. She was wedding-dress shopping. To her it was normal to spend over $200,000 at the luxury dress-maker, Kleinfeld. There was no problem featuring on the popular TV show, “Say Yes to the Dress”.

She is described in the show as “…royalty in her country”. What struck Angolan viewers was that Naulila was Bornito de Sousa’s daughter. He was a cabinet minister who had boasted about not taking a government salary. He was seen as incorruptible. His daughter’s act eviscerated that image. As put by a Zimbabwean blogger, “[$200,000] is a LOT of money!! So much question is how much did the wedding cost? I can’t even imagine how lavish it was!” Although no action followed, Naulila became a symbol of the billions in missing natural resource wealth from the Angolan government’s purse in a country mired with avoidable poverty.

Others have not put their foot in it as badly as Naulila. But it is a recurring theme. Children and family members often unwittingly expose the proceeds of questionable income on social media and are increasingly becoming a valuable source for investigators. For El Chapo’s sons, Instagram was a means to show off wealth gained from trafficking drugs: guns, cars and exotic animals. For others, it seems to simply be an accurate reflection of the life they have always lived. Their selfies provide an unwitting insight into the whereabouts of syphoned funds.

Latinen and Loynes found that over one-third of adults on social media leave their pages open to the public. Speaking to the Guardian in 2016, KR Intelligence said that social media is frequently used in private litigation to provide the wherewithal to freezing and seizing assets. Often social media posts not only show what they own, but where it is being held. It might not just be the expensive car, yacht, or designer watch, but the art on the wall of a holiday home. Or the home itself.

Habitual posters can reveal behaviour patterns that pin-point people to specific locations, or provide accurate data to predict their whereabouts at a given time. Indeed, her on-going Snapchat posts were attributed to robbers in Paris discerning Kim Kardashian’s whereabouts, leading to them stealing $9m in jewellery. For the FBI, Ray Hushpuppi’s Instagram posts of lavish living to his 2.4m followers allegedly revealed his part in a $138m money laundering conspiracy.

In the UK, social media played an important role in freezing Luca Filat’s assets. His father, Moldova’s former prime minister, had been imprisoned for assisting in the theft of $1bn from three Moldovan banks, equivalent to 12.5% of the country’s GDP.

A year after his father’s arrest, Luca arrived in London to study and quickly made his mark. His lavish spending is well-reported: a £390,000 upfront payment for a penthouse in Cadogan Square and a £200,000 Bentley, among other things. Photos taken from Facebook show him spraying €500 bottles of Dom Perignon and fist bumping a friend atop a G-class Mercedes. The NCA were able to get orders against Luca’s bank accounts with a total balance of £466,321.72.

Another example is Bellingcat’s investigation following the murder of Aierken Saimaiti, the money launderer who had assisted members of the Kyrgyz elite take money from Kyrgyzstan. Saimaiti had told journalists he laundered £5.65m into the UK for the benefit of Raimbek Matraimov, the deputy chief of the Kyrgyz Customs Service. Bellingcat say he “…is notorious for his family’s lavish lifestyle, seemingly at odds with the salary of a career public servant”.

Although the family deny the allegations, credence is given to them by his son’s expensive private education and habit for expensive watches. Instagram photos show Raimbek’s son, Bakai, putting up his middle finger with a Hublot watch on his wrist. Two other photos reveal a penchant for watches valued in the tens of thousands.

Bakai and Luca show the real value of monitoring family members’ open source and social media postings in discerning the whereabouts and ownership of questionable assets. But people are getting savvy. K2 told the Guardian that the super-rich were increasingly seeking help in devising social media policies for posting content.

While investigators become entangled to their eyeballs in shell companies and structures put in place to obfuscate ownership, social media posts may yield fruit of that vital connection. They may at the very least allow inference about a lifestyle over a long period of time inconsistent with one’s known earnings. This may be of particular use in the UK when seeking unexplained wealth orders. While already significant, we are likely to see social media playing an even more important and central role in investigations in the coming years.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Odebrecht in Mexico: a game-changing scandal?

Juan Cepeda, an alumnus of the LLM in Corruption, Law & Governance at the Centre for the Study of Corruption, looks at the Odebrecht case in Mexico.  He assesses whether the unique profile and features of the case will make it a rare example of justice triumphing over politics – concluding that international pressure may be the deciding factor.

The scandal involving Brazilian construction company Odebrecht might prove to be a game changer in the Mexican political system. The transnational nature of the case means there is a chance to break the cycle of corruption and impunity in politics and the administration of justice which all too often characterise the system in Mexico.

Odebrecht has already been convicted in multiple jurisdictions of paying bribes to gain contracts and influence. The action has now moved to Mexico, where the company is accused of paying multiple bribes to companies including Mexican oil company Pemex, some of which were then used to fund the 2012 election campaign of former President Pena Nieto.

Since we are dealing with a major transnational bribery scheme, interest in this scandal is not simply domestic. The international community will be watching closely the Odebrecht trial and will have an interest in seeing that due process is followed.  After all, Mexico was one of the earliest countries to ratify the OECD Anti-Bribery Convention, and the OECD’s influential Anti-Bribery Working Group will certainly be following the progress of this high-profile trial.  External pressure may be needed to push for the Mexican state to prioritise justice over politics.

Odebrecht represents perhaps one of the most sophisticated, transnational bribery strategies ever disclosed to the public. It involved one construction firm, twelve countries from two different continents (Africa and America), and more than USD 700 million delivered to high ranked officials in order for a considerable number of bids to be illegally awarded to the company.  Apart from Mexico and Venezuela, all Latin American countries have taken legal action against presidents, former presidents, ministers, vice-ministers, and other relevant public officers.

With the legal action now moving to Mexico, it appears that we might finally be witnessing an earthquake that could shake the Mexican political system. The movement of tectonic plates started with Emilio Lozoya, former CEO of Pemex (2012-2016) and head of the foreign affairs office during Enrique Peña Nieto’s presidential campaign in 2012. Lozoya was arrested in Spain in 2019 after being accused of money laundering, bribery and criminal association linked to Odebrecht’s bribery scheme. Three weeks ago, he arrived in Mexico after being extradited to face criminal trial in Mexico City.

From the moment Lozoya arrived from Spain after spending months incarcerated, the criminal process has been highly irregular and of questionable legality.

According to the Mexican law, Lozoya should have appeared before the judiciary immediately after landing in Mexican soil. Nevertheless, the Attorney General took him directly to a hospital, arguing health issues, such as anaemia and a hernia that needed to be urgently treated. Assuming that Lozoya was in fact in such an urgent need of medical care, the law allows a judge to pay a visit to the hospital to confirm the alleged health situation of the indicted person. This didn’t happen. The prosecutor -acting irregularly- never involved the judiciary. Lozoya spent 11 days in a private hospital in Mexico City and afterwards he appeared before a judge via a Voice over IP platform, which might also constitute a violation of due process.

Furthermore, pursuant to Mexican Law, the trial must be public. However, the judiciary decided to hold the initial hearings privately. The only information available was a series of WhatsApp messages sent to the media, allegedly with substantial information from the hearings.

Additionally, the judiciary has announced that the whole process will remain closed to the public, contravening the new criminal justice system in Mexico, which, amongst other reforms, enforces public oral trials. The argument behind this decision is the COVID-19 pandemic.

“Leaks” to the media – which may themselves be grounds for contesting the result of the trial – point to a corruption scheme that involves former ministers of state, the former presidents Enrique Peña Nieto and Felipe Calderón, and several congress people. Mexico is therefore facing what could be the biggest corruption trial in its history. The question for the country and its politicians is whether justice will this time predominate over politics. The track record is not encouraging: as a general rule, Mexican politicians make use of corruption scandals for electoral purposes, for revenge against the opposition or to deter certain actors in their quest for power.  Corruption and impunity for politicians have been more common than the administration of justice in the form of fair and effective law enforcement.

Odebrecht is a milestone in the study of corruption due to the scale of the corruption, the multiple prosecutions that have happened across Latin America, and the direct lines that can be traced to the very top of politics. It is an opportunity for Mexico to prioritise the rule of law over political advantage – although the situation is complicated further by the desire of the current government to use the case to damage the opposition. The world’s attention is elsewhere at present, with Covid-19 and a US election amongst other distractions.  However, external scrutiny, and diplomatic pressure, could do a great deal of good in reinforcing democratic values and the rule of law. This is the time for the international community to step up to the plate.

 

 

 

The Westferry Affair – the Fallout

Recent events have focused attention on conflicts of interest and potential ‘cash for access’ in UK politics. Following his first post on the Westferry affair, Joseph Sinclair, a lawyer taking our Master’s in Corruption and Governance, examines the fall-out and wider implications.

 A Recap (see full background here)

The Conservative Housing Secretary, Robert Jenrick, has been implicated in a “cash-for-favours” arrangement with Richard Desmond, a billionaire property developer. Desmond’s company, Westferry Developments, sought to build 1,524 residential units to which the London mayor and local authority had objected.

Jenrick and Desmond had sat next to one another in a £900-per-head fundraising dinner. They spoke about the development and Jenrick was shown a video. The pair texted one another after dinner. Desmond said to Jenrick: “we appreciate the speed as we don’t want to give Marxists loads of doe for nothing!” The message referred to the £45m community infrastructure levy (“CIL”) due to be paid by Desmond’s company if the development was not approved by 15 January 2020.

Documents published show that Jenrick’s office put considerable pressure on civil servants to get the decision to him before the CIL deadline. Against his department’s advice he approved the development on 14 January 2020. On 29 January, Desmond made a £12,000 donation to the Conservative Party.

The local authority took the matter to court. On agreeing to quash the decision, Jenrick’s department accepted that the fair-minded observer would conclude a real possibility of bias towards Desmond’s company.

Further Developments

Jenrick told the Commons that he made the decision with an open mind and approved it with the view to the development producing 250 “affordable homes”. The Cabinet Secretary said that the Prime Minister, Boris Johnson, considered the matter closed.

Further allegations against Jenrick have been raised. In 2019, another property developer, Mark Quinn, gave the Conservative party £11,000. Shortly thereafter Jenrick’s department became involved in Quinn’s appeal against the refusal of planning permission for 675 homes in Kent. Three weeks after Jenrick’s involvement, Quinn donated a further £26,500. Jenrick denies being directly involved.

The Housing, Communities and Local Government Committee wrote to Jenrick with several questions, including a request to outline the measures in place to avoid such [an] obvious conflicts of interest”. They asked Jenrick why a target of 20% of affordable homes was deemed acceptable instead of the local authority’s required 35%. Jenrick responded by saying that the plan offered 142 more homes than the original permission given by Boris Johnson as London Mayor. He went before the Housing Committee on 22 July 2020 to answer questions.

What Does the Westferry Affair Tell Us?

This had the appearance of a significant conflict of interest, meaning that Jenrick ought to have recorded the meeting and recused himself. He told the Housing Committee that he did not because he was not advised to do so. This approach to monitoring conflict does not accord with the self-governing positive obligations in the Ministerial Code. The PM’s in fully investigating Jenrick’s against the Code actions also shows serious shortcomings in its operation.

While the platitude “build build build” bounces around the Commons, we need to ask who is going to benefit. Johnson has announced “…the most radical reforms of our planning system since the end of the second world war”. His government will “…scythe through red tape”. Will we see affordable sustainable housing or a perpetuation of what we see in London: multi-million pound new-builds sitting empty?

The Conservatives have received more than £11 million in donations from property developers since Johnson became PM. The government is also being taken to court over dishing out questionable contracts for personal protective equipment. A report by the National Audit Office on the £3.6bn Towns Fund suggests pork barrel spending. The fund is intended to help struggling towns. Yet all but one of the 61 towns chosen at Jenrick’s discretion to receive support were Conservative-held or were targets seats for the election – including his own.

Desmond’s relationship with the Conservative leadership is deep-rooted. A chummy email from Desmond to Johnson revealed in an FOI request reads:

Thank you so much for your book, The Churchill Factor: How One Man Made History, I will read it over the half term and when I say read I mean read. Keep in touch.

 I will see you on 22 Oct at 8 am at the Ruby Breakfast, London Hilton Park Lane, where I will be supporting you as always.

Boris’ diaries show countless opportunities for them to cross paths: Johnson had been for lunch with Desmond at Northern & Shell’s offices on 30 September 2015 and met Desmond for a drink at the Corinthian Hotel near Whitehall on 09 September 2015.

There should be real concern about the probity and motivations behind the government’s latest moves to remove ‘red tape’. Greater discretion gives the government free rein to favour their own ambitions or their cronies’.

What more does the Westfair affair tell us? Well­–

  • The public wants greater accountability

A survey commissioned by the i newspaper that found that only 23% of the public felt Jenrick should remain in the Cabinet. 41% believed that the PM backing Jenrick showed weak leadership. In a June 2020 survey of Conservative party members, Jenrick had an approval rating of -23.0% with 41.32% taking the view he should resign from government.

  • British politics is cheap, as the FT’s Henry Mance notes

Jenrick sought to approve a programme that denied £45m in CIL to one of the poorest boroughs in the UK. He argued that this was a “material change” which put the likelihood of the project in jeopardy. Whether you believe the reasons he gave or not, the Conservative coffers gained £12,000. A measly sum one might say.

  • Party fundraising remains a murky business

How Desmond and Jenrick came to sit next to one another remains a mystery. Jenrick told the Committee that he only found out he was sitting next to Desmond when he was at the table.

Members of the Conservative party have raised concerns that their co-chairman and superstar fundraiser, Ben Elliot, is not “…sufficiently careful to avoid unfortunate juxtapositions”. Elliott, the Duchess of Cornwall’s “favourite nephew”, is involved in his own scandal involving the use of public money for a “personal project”. His PR firm was previously retained by Desmond to lobby the government.

  • Measures for highlighting and resolving conflict in planning are insufficient

 Jenrick said that cases which come before him and other ministers are invariably complex. Decisions will often be based on subjective judgement which may depart from the planning inspectorate (there have been 14 such cases in the last 3 years).

In spite of this, on the decision’s face, there was no indication of Jenrick’s perceived or actual bias. It took a claim for judicial review and considerable political and public pressure to bring the light the extent and nature of Jenrick’s conflict. This clearly needs to change towards a transparent system of declaring conflicts. As the BBC’s Nick Robinson said, Jenrick has the power to back projects at the “stroke of a pen”.

‘Cash for access’ undermines the integrity of political representation. The Westferry affair embodies this notion. While the scythe is taken to the red tape, it seems that the Conservative party’s coffers and the colour of the constituency in the next election might be the prime motivations, rather than helping those in need of affordable and safe housing.

The Property Developer and the Housing Secretary: Does the Jenrick Affair demonstrate there is one law for the government’s friends and another for everyone else?

Concerns about the cosy relationship between politics and business in the UK have re-surfaced in recent weeks through the exposure of an alleged ‘cash for influence’ deal involving a government minister and a property developer. In this post, Joseph Sinclair, a lawyer currently taking our Master’s in Corruption and Governance, discusses whether, in his view, a criminal offence has been committed.

I:          Introduction

It might have been different in a time not-so-far away. It was only two years ago that a minister sought to resign over being minutes late to answer questions in the Lords.

It might have been expected that the Housing Secretary, Robert Jenrick, would have resigned following allegations of inappropriately approving a housing development owned by a Tory donor. He hasn’t.

Aside from the shift to a political culture of battening the hatches and hoping for the media storm to pass, the Jenrick affair shows that potential political criminality is not taken seriously in the United Kingdom.

The Good Law Project is considering a private prosecution against Jenrick for misconduct in public office (“MIPO”). This blog post reviews what we know so far of the affair and asks: has an offence been committed; and if so, what is it? The answer might lie within section 2 of the Bribery Act.

II:        Alleged Salient Facts

Robert Jenrick MP was appointed as Housing Secretary on 24 July 2019. Richard Desmond is the billionaire former owner of the Express newspaper and pornographer.

Through Westferry Developments Ltd, Desmond sought to build 1,524 residential units on the Westferry Printworks Site in east London (the “Development”).

Desmond had previously been given planning permission in 2016 by the then mayor, Boris Johnson, for a smaller project. But Desmond had since decided to ramp up the size of the development. Both the Greater London Authority and Tower Hamlets LBC had objected to this. Westferry sought permission to appeal in 2018.

Changes to the Community Infrastructure Levy (“CIL”) meant that Desmond would have incurred a £45 million payment if the Development was approved after 15 January 2020. CIL is described by the government as an “…important tool for local authorities to use to help them deliver the infrastructure needed to support development”. Tower Hamlets is one of the poorest boroughs in the United Kingdom.

On 18 November 2019, Jenrick was seated next to Desmond at a £900-per-head Conservative party fundraising dinner at the Savoy. Jenrick initially denied that they spoke about the Development but later admitted that Desmond showed him a four-minute video. He allegedly agreed to attend a tour.

Documents subsequently published show that later that night Jenrick texted Desmond, saying “Good to spend time with you tonight Richard. See you again soon. I hope”. Two days later, Desmond texted Jenrick to say inter alia that Desmond had arranged for Jenrick to attend the site and that “we appreciate the speed as we don’t want to give Marxists loads of doe for nothing!”. Jenrick responded with a carefully worded message about “appearance of being influenced by applicants”. He did not attend the site.

However, on the same day, his private office contacted civil servants within Jenrick’s department saying:

SoS has flagged a case in Westferry London Docklands… He understands a ministerial decision on this is likely to be coming up soon and also there may be some sensitivity with timing of final decision…

Internal departmental emails show that they were under pressure to get the decision to Jenrick well before 15 January (eg. Jenrick’s office chased on 12 December 2019). On 13 December 2019, a day after the general election, Jenrick’s department wrote a briefing for him, advising him to dismiss and refuse planning permission. On 17 December 2019, an internal email says that “[Jenrick] has decided to take all planning casework decisions himself”.

Desmond sent Jenrick another text on 23 December 2019, saying that “[w]e have to get the approval before January 15 otherwise payment of 45 million pounds to tower hamlets…”  Five days later, an internal departmental email stated that Jenrick “…would like to approve the application (author’s emphasis)”. Jenrick had a meeting with his department to “…discuss his rationale for wanting to approve [the Development in spite of it] … going against the recc of inspector and officials”.

On 14 January 2020, Jenrick formally granted planning permission to the Development. On 29 January 2020, Desmond made a £12,000 cash donation to the Conservative party. There might have been an expectation that more would follow: Desmond’s companies had previously given £1.3m to UKIP in 2014/15, as well as £10,000 to the Conservatives in 2017.

Tower Hamlets sought to judicially review Jenrick’s decision. In pre-action correspondence, Jenrick’s department refused to disclose documents. The Government Legal Department said that “the council’s request for disclosure of documents is nothing more than a ‘fishing expedition’ without any proper foundation”.

After proceedings commenced, Jenrick’s department accepted that:

“…the timing of the [decision] on the eve of the approval… thereby avoiding a substantial financial liability… would lead the fair minded and informed observer to conclude that there was a real possibility that [Jenrick] was biased in favour of [Westferry Developments].

On this basis, they agreed to concede and consented to a quashing order (ie. treating Jenrick’s decision as though it was never made). This gave a bizarre twist to the story in that, apparently to keep the documents secret, the Government preferred to admit that it had acted unlawfully and have the planning decision reversed.  That obviously begs the question: what was it that they wanted to keep secret?

 A whistle-blower within Jenrick’s department subsequently informed The Times that:

  1. Jenrick had not informed officials that he had met and texted Desmond;
  2. Jenrick had been informed that it was 70-80% likely the decision would be judicially reviewed; and
  3. Civil servants were shocked by Jenrick’s urgency for a decision – the inference being that it was out of the ordinary.

On 15 June 2020, Jenrick responded to a question in the Commons, saying:

“…My Department knew about my attendance at the event before I went to it. It knew about the fact that I had inadvertently sat next to the applicant. I did not know who I was going to be seated by until I sat at the table. I discussed and took advice from my officials within the Department at all times.”

In answers to other questions (1), (2), Jenrick said:

“I made [the decision] with an open mind, because we want to see more homes built in this country and in particular in our capital city. This development would have led to 1,500 homes and 250 affordable homes. I remind the House that this contentious decision came to my desk as Secretary of State because the local council had failed to determine it in accordance with the law.

[ …]

“I discussed with my officials that the applicant had raised the matter. I advised the applicant that I was not able to discuss it, so I think I have answered her question comprehensively.”

The Cabinet Secretary wrote to an MP on 24 June 2020 to say that on these remarks, the Prime Minister “…considers that the matter is closed”. Defending Jenrick, Business Minister Nadhim Zahawi MP said:

“Viability is incredibly important. Getting stuff built is incredibly important to Robert Jenrick – that was his motivation.”

III:       Is There Evidence of an Offence?

The Good Law Project is considering the viability of a prosecution for MIPO. But it seems to be a good starting point to consider whether there might be a case to be answered under section 2 of the Bribery Act 2010, namely “being bribed”.

Being Bribed Offence

Section 2(2) reads:

[A person (“R”) is guilty of an offence] …where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).

 This offence is informed by:

  1. Section 2(6)(b) that says “…it does not matter whether the [other] advantage is (or is to be) for the benefit of R or another person”. The SFO and CPS joint guidance says that “other advantage” is left to be determined as a matter of common sense by the tribunal of fact, i.e., a jury.
  2. Section 3(2)(a), (3), (4) and (5) which says a relevant function is one of public nature and the person performing this function is expected to perform it in good faith, impartially, and is in a position of trust by virtue of performing it.
  3. Section 4 which says that a relevant function is performed improperly where it is in breach of a relevant expectation.

Bribery offences can only be brought by the Director of Public Prosecutions or the Serious Fraud Office in accordance with section 10 of the Bribery Act.

If a prosecution was brought under the Bribery Act, a jury would need to decide whether this is a straight-forward case of: “you approve my housing development and I will make a donation to your party”. The jury would need to consider that Jenrick sat next to Desmond at a Conservative party dinner whose objective was to raise funds, where he was shown a video of the Development. They exchanged text messages and thereafter Jenrick’s office started to pressurise civil servants to meet the January deadline so that Desmond could achieve a £45m saving. A few days after this was achieved, Desmond paid Mr Jenrick’s political party £12,000.

Significance might be attached to Jenrick’s text message distancing himself from Desmond in December. Indeed, he has tried to use this as a defence. But it is important to ask:

  1. Why did he not tell his department about the meeting (though he disputes this)
  2. Why did he initially deny speaking to Desmond about the Development?
  3. Why did his department initially refuse to disclose the documents when they were clearly relevant to the probity of his decision?
  4. Why did he want to make these planning decisions himself?

From Jenrick and his colleagues’ statements cited, it appears that the likely retort is that this project would have delivered around 1500 residences. Jenrick took the view that this was needed and that the £45m CIL payment hindered the viability of the project. However, it is unclear how he reached the conclusion that the £45 million payment to the local council would make the project unviable: Desmond’s own texts give the reason as ‘we don’t want to give Marxists loads of doe for nothing.’ Jenrick acted accordingly and Desmond’s messages, the dinner and subsequent payment did not impact his decision in any way.

The facts of the case, although disputed at the edges, are increasingly clear.  They would certainly point towards prosecution.  This would leave a jury to decide whether what has occurred is a misjudgement made in good faith by a Minister trying to fulfil his public duty, or a criminal offence.

Misconduct in Public Office (MIPO)

MIPO is a common law offence and has four elements summarised in Attorney General’s Reference No. 3 of 2003:

  1. A public officer acting as such;
  2. Wilfully neglects to perform his duty and/or wilfully misconducts himself;
  3. to such a degree as to amount to an abuse of the public’s trust in the office holder; and
  4. without reasonable excuse or justification.

The first element is straightforward in this case, but that’s where simplicity ends. As to the second element, the prosecution must show that Jenrick was aware that his conduct was capable of amounting to misconduct. It must also amount to an affront to the standing of the public office held (see the CPS guidance).

Is a jury really going to take that view? In light of the anticipated defence, what might they make of the requirement of there being no reasonable excuse or justification? It seems that the moving parts of the offence leave greater scope for an acquittal.

IV:       Conclusions

The facts have become clearer since the documents were published, but there remain a number of assumed facts that would require hours of police and/or solicitor time to validate. However, there is enough already to suggest that there is potential for a prosecution.

In considering which offence is more appropriate, s2 seems the more attractive of the two. The provisions of the Bribery Act were put in place to simplify prosecuting these kinds of cases.

The Government has said it wants to move on from this case.  But if a Minister has committed a criminal offence, it would be wrong to move on.  It is hard to imagine that with this set of facts in a different situation – for example, a local councillor approving a planning decision and then receiving £12,000 for his or her re-election campaign – that moving on would be the right thing to do.  The immediate question in this case might be for a jury; but the ultimate question is for the electorate to decide whether it is happy for one law to apply to the government and its friends, and another to everyone else.