Skeleton Argument Legal Brief

It is a legal brief , skeleton argument that is required for an under graduate degree LLB.

1. The skeleton argument is in two parts. Points 2 through 20 address the potential criminal liability of Joe Snaresborough ('Snaresborough'). Points 21 through 27 address the quantum issue.

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CRIMINAL LIABILITY

2. There are five incidents that have the potential to give rise to criminal prosecution.

a. The incident with Ralph Windsor evidenced on 16th August 2005;
b. The incident with M. Balachandran evidenced on 3rd August 2005;
c. The incident with PL Gairola evidenced on 3rd August 2005;
d. The incident with DC Tait evidenced on 12th August 2005, and
e. The recall of Snaresborough from the Council on 16th April 2004.

3. There are two possible sources of prosecution; the common law offence of bribery and statutory offences of corruption. Because the latter have almost entirely subsumed the former, it is the statutory offences that will be focused on. The statutes are:

a. The Public Bodies Corrupt Practices Act (1889), and
b. The Prevention of Corruption Act (1906)

4. These statutes only apply to corruption of officials in the United Kingdom. The Anti-terrorism Crime and Security Act (2001), s108 states that any act that would be an offence under the above acts if in relation to a British official can be prosecuted in the UK. Even though Snaresborough is not a British citizen he can still be charged under these statutes.

5. The two crucial questions are: what is meant by "corruption" and who must be involved?

a. The meaning of corruption is identical under both statutes. It involves any act which "the law forbids as tending to corrupt" (Cooper v Slade (1858) (6 H.L.Cas). It has been held that it is no defence to show that the offer or gift did not in fact affect the officials judgement (R v Parker (1985) (82 Cr App R 69). If an offer or gift is accepted, the only defence is to show that it was accepted innocently. In this case, R v Smith (1960) (2 QB 423) clarified that only the offeror would be criminally liable.

b. For the 1889 Act to be affected the defendant must either be a public official or someone attempting to bribe a public official. This has been defined widely by the courts in light of the Prevention of Corruption Act 1916. Section 4 of this act extended the definition to "local and public authorities of all descriptions".

6. Often proof of corruption is difficult to obtain. Therefore section 2 of the Prevention of Corruption Act (1916) states that where a gift is made to a public official or agent there is a rebuttable presumption that the motives are corrupt. This passes the burden of proof to the defendant. It does not apply where the 2001 Act is needed.

Ralph Windsor ('Windsor')

7. Windsor was entertained, in his words "on a lavish scale" by Snaresborough. He later placed Lozenge-O-Soft on the 'Recommended Importers' list for India without going through the appropriate channels. As a Consulate official Windsor is within the scope of the 1889 Act. The 2001 Act brings him within the jurisdiction of England and Wales.

8. The crucial point here is establishing a link between the entertainment given, and the outcome achieved. Without the presumption acting, it will be difficult to satisfy the burden of 'beyond a reasonable doubt'.

9. While there would be difficulty in establishing a link between the hospitality and the action, there is little doubt from the statement that on the 20th December Snaresborough did ask to be placed on the list. It is more likely therefore that a charge of attempted bribery would succeed.

M. Balachandran

10. The key here is that 15 days after the ruling by the magistrate which benefited 'Lozenge-O-Soft' Snaresborough transferred a car to the magistrate who had made the ruling. Once again, it would have to be shown beyond reasonable doubt that this was a reward for the satisfactory ruling. It would be for the prosecution to prove beyond reasonable doubt that there was a link, and no presumption would apply. However, without an effective explanation from the defendant there is a good chance of a prosecution succeeding.

PL Gairola

11. In this instance Snaresborough is alleged to have accepted a bribe. This has no effect under the statutes. Because he was a public official, as a Council member, in Britain the presumption of corruption applies. The burden of explanation would be on him to show good reason for having the gift.

12. On the facts he has claimed that the jewellery was "money for old rope". This seems to suggest it is a payment for past deeds. Even if this is accurate it will still likely be construed as a bribe; particularly given the presumption of corruption. There is a strong chance of a prosecution succeeding.

DC Tait

13. DC Tait contends that the money didn't make a difference in her investigation. However because she accepted the £40,000, the authority of Parker (see above at paragraph 5a) deems that the offence is satisfied. Acts of the police fall within the scope of the statute (R v Silbatson (1899) (129 Cent Crim Ct Cas 372)

14. The presumption of corruption applies and there appears to be clear evidence of bribery; it is unnecessary that the exact words are used. As such I believe it highly probable that a prosecution will succeed.

The Council

15. There are two points that are relevant to the recall from the Council. The first is that even though he is deemed to have never been elected, this does not prevent prosecution for corruption while serving on the Council (Blackstones B 15.7)

16. There may be the possibility of a prosecution for election fraud under these statutes or more specific legislation. No opinion can be given on this without more information.

Sentencing

17. The two statutes that Snaresborough may be criminally liable under both carry the same sentence; seven years imprisonment and/or a fine. A brief glance at the cases suggests that custody is almost certain barring extremely powerful personal mitigation. In R v Oxdemis (1985) (7 Cr App R S 382) a bribe of £50 merited a 3 month custodial sentence. In R v Dearnley (2001) (2 Cr App R S 201) Rafferty J emphasised that "custody was required as a deterrent".

18. The sentence will naturally depend on how many counts he is convicted of. Each offence has different elements that tend to aggravate the seriousness. Only an estimate can be given until it known how many offences he is convicted of.

19. In R v Donald (1997) (2 Cr App R S 272) a detective received 11 years for four counts, with the expected sum being around £50,000. The court acknowledged that this case was "almost unique in seriousness". It is arguable though that this case approaches this level and that a custody sentence of between 5 and 7 years is not unlikely.

20. In order for a more exact figure to be given, indications of his plea, and personal mitigation would be needed.

THE FINANCIAL ISSUES

21. As stated in the instructions, the legal issues concerning the expenses and jewellery have been passed to others.

22. The appropriate legislation to apply to debts is The Late Payment of Commercial Debts (Interest) Act (1998), as amended by the Late Payment of Commercial Debts Regulations (2002). This provides for interest of debts to be 8% above the base rate.

23. As of August 2005 the national interest rate was 4.5%. As such the appropriate interest rate to be sought is 12.5% (8 + 4.5).

24. The exchange rate as of today (17/11/2005) is 78.5 Indian rupees to the pound.

25. The finances given in the instructions are:

a. Corporate entertainment = £2,500
= 588 days
= £503.42

b. BMW purchase = 282481 rupees
= £3,598.17
= 467 days
= £575.46

c. Commercial expenses (not yet processed) = £20,000

d. Set of jewellery = 58,000 rupees
= £780.79
= 110 days
= £29.41

26. The total including the unclaimed expenses is £27,987.25. No interest has been added for the commercial expenses because the money has not yet been released by the company. If the interest were to be added the total would amount to £31,363.96 (additional £3376.71).

27. The total excluding the unclaimed expenses is £7,987.25

CONCLUSION

28. There is a strong chance that Snaresborough will be convicted of at least some offence under the statutes give and that he will serve a custodial sentence.

29. If the monies paid out were to be claimed back in negotiation, the total inclusive of 12.5% interest is £7,987.25.

BIBLIOGRAPHY

Archbold 2005
Blackstones 2005

http://www.payontime.co.uk/calculator/statutory.html
http://www.x-rates.com/

Cooper v Slade (1858) (6 H.L.Cas)
R v Dearnley (2001) (2 Cr App R S 201)
R v Donald (1997) (2 Cr App R S 272)
R v Oxdemis (1985) (7 Cr App R S 382)
R v Parker (1985) (82 Cr App R 69)
R v Silbatson (1899) (129 Cent Crim Ct Cas 372)
R v Smith (1960) (2 QB 423)

The Public Bodies Corrupt Practices Act (1889)
The Prevention of Corruption Act (1906)
The Anti-terrorism Crime and Security Act (2001)
The Late Payment of Commercial Debts (Interest) Act (1998)
The Late Payment of Commercial Debts Regulations (2002)
The Prevention of Corruption Act 1916

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