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127 L. Q. Rev. 37 (2011)
Bribery as a Form of Criminal Wrongdoing

handle is hein.journals/lqr127 and id is 37 raw text is: BRIBERY AS A FORM OF CRIMINAL WRONGDOING Jeremy Horder Edmund-Davies Professor of Criminal Law, King s College London, formerly Law CommissionerJbr England and Wales Introduction: a Summary of the Argument Few people would deny that bribery, prohibited in Magna Carta itself,' should be a criminal offence. I will seek to explain why that is. I shall suggest that the criminalisation of bribery is surprisingly difficult to explain, for those who take harm-doing to be the central case of conduct fit for criminalisation. The problem for such thinkers is this. Bribery may, indeed frequently does, involve harmless wrongdoing; but the justification for making it a criminal offence is not any unwarranted harm that bribery by its nature involves. The justification is the nature and degree of remote harm that may result if bribery is left unpunishable, given the likely ineffectiveness of the civil law-considered below-in deterring its occurrence. As we will see, this remote harm justification for making conduct criminal is regarded by some theorists as a secondary and potentially problematic case of criminalisation. However, that leaves such theorists with a difficulty in explaining not only why bribery, but perhaps also other important crimes, such as rape, are commonly regarded as central cases of criminal wrongdoing. The truth is that the criminal law may, and should, legitimately draw on a wide range of harm-related reasons for including conduct within its scope and at its core. The fact that the conduct itself involved causing unwarranted harm is only one such reason. Bribery: Wrongdoing Without Harm Necessarily Done Here are two relatively simple cases of bribery, one from the public sector and one from the private sector. Example 1: R is a civil servant in charge of completing necessary paperwork for those who have been granted a passport. R must complete the paperwork for at least 20 passports a day. P's passport happens to be one of 20 that R has earmarked to process on a particular day. Discovering this, P pays R to process his or her paperwork early in the day so that P can catch a flight abroad later that day. R consequently processes P's documentation early. None of the passport-holders whose paperwork could be processed the same day is travelling abroad in the near future. To no man will we sell ... either justice or right. Older authorities commonly cited biblical authority for the view that bribery was wrong. See for example, Exodus xxiii, 9, Do not take bribes, for bribes blind the clear-sighted and upset the pleas of those who are in the right, and Bracton, De Legibus et Consuetudinibus Angliae, edition of S.E. Thorne (Cambridge, Mass.: Harvard University Press, 1968), Vol.11, pp.302-303, both cited by Stuart P. Green, What's Wrong with Bribery, in R.A. Duff and Stuart P. Green (eds), Defining Crimes (Oxford: OUP, 2005). (2011) 127 L.Q.R. January © 2011 Thomson Reuters (Legal) Limited and Contributors

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