No room at the witness stand – Kenyan groups raise the question of victims of corruption in the UK courts

23 February 2015, Corruption Watch UK.

This post was originally published on the Corruption Watch UK website.

It has long been an anti-corruption mantra that corruption is not a victimless crime. As the OECD states in its anti-corruption literature, corruption “hurts real people in real ways” and “those most hurt by it are the world’s weakest and most vulnerable.”

The SFO recognises this. In its ‘Our Commitment to You’ pamphlet it states, “We are aware that fraud and corruption are not victimless crimes. We have seen firsthand the worry and distress they cause.”

The UK courts recognise it. As Lord Justice Thomas said in the Innospec case: “There can be no doubt that corruption of foreign government officials or foreign government ministers is at the top end of serious corporate offending both in terms of culpability and harm. It is deliberate and intentional wrongdoing. It causes serious harm.”

So why is it so hard to get victims of corruption properly recognised in the UK courts? Victims of corruption have to prove that they suffered harm that was “directly caused by the criminal conduct”. This is complicated in the case of corruption, because as the UN Office on Drugs and Crime (UNODC) says in its toolkit for crime, “the only victim in many cases is the general public interest”. Or as the OECD puts it, “it is ultimately the individual taxpayer or costumer who foots the bill” for corruption.

But even if a victim of corruption could prove direct harm, under the UK’s new Code of Practice for Victims of Crime that came into effect in December 2013, they would only be entitled to help under the Code on a discretionary basis. This is because corruption apparently is not a criminal offence under the National Crime Recording Standard – that is, it isn’t counted as a crime because it isn’t included in the Home Office Counting Rules that determine what crime gets recorded.

There is a further problem with the Code of Practice for Victims when it comes to corruption. Overseas corruption usually entails corruption of a public official. Courts recognise the state or public body involved as the victim in these cases. But under the Code, public bodies are specifically excluded from making impact statements to the court about the consequence of the crime.

This means that in practice victims of corruption have very few rights in relation to the UK courts. At the same time, very little evidence is generally put before courts in corruption cases about the harm that the corruption has caused. That was certainly the case in the recent Smith and Ouzman trial, where no evidence was put before the jury of the damage that Smith and Ouzman’s bribes had caused.

To rectify this, a coalition of Kenyan NGOs, Kenyans for Peace Truth and Justice wrote a powerful letter to the Director of the Serious Fraud Office spelling out the harm caused by Smith and Ouzman’s corruption and asking the SFO to put evidence from expert witness before the Judge at the sentencing of its Directors on February 12th. The letter spells out how bribing the new electoral commission of Kenya that was formed following the violence and instability of the 2008 General Elections in Kenya in which over 1000 people died, has undermined electoral integrity and exacerbated political uncertainty. The SFO has promised make the letter available to the Judge.

Corruption Watch also wrote to the SFO in support of KPTJ’s letter, and calling for the SFO to ensure that full evidence of the financial gain that Smith and Ouzman got through their corruption is presented to the Court, including an £11 million contract for the 2013 General Election in Kenya.

During the sentencing hearing, however, the Judge made it clear that he could not consider the contents of the letter in reaching his verdict. During the prosecution’s pleadings regarding sentence, the letter was referred to as evidence of the harm caused by the bribery in Kenya. The Judge commented that he had already decided that the letter could not be used to influence his thinking. This was reiterated during the reading of his judgment, in which HHJ Higgins commented that the letter ‘should not, and does not, play any part in my approach as to the right and proper sentencing of each of you.’ The reasoning for this was not made explicit.

Corruption Watch UK is currently considering the implications of the Judge’s comments, but will endeavour to explore every available avenue to make sure that the voices of victims of corruption are heard in the UK courts.