Reference..
HKK 14/38
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still sellon's difficulty about accepting amined /
The points raised in Sir Arthur Grattan-Bellew's minute of 20 August were discussed with Mr. Roberts, Mr. Rushford and Sir Arthur Grattan-Bellew on 8 September and the following conclusions were reached (references are to the paragraphs of the minute in question):
Paragraph 2.
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Mr. Roberts explained that the inclusion of the words "any Government Department or undertaking" in the definition of "public body" in clause 2 was for the purpose of clarification. However, he agreed to look at the definition again.
Paragrah 3.
It was suggested that clause 3 of the Bill should be broken down into two clauses, one dealing with the relatively minor offence of accepting a present in circumstances where corruption may not necessarily be involved, and the other dealing with cases involving corruption. The maximum penalties could then be varied in relation to each of the two clauses.
So far as the minor offence was concerned, it was suggested that for presentational reasons there might be advantage in including in the clause something on the lines of Colonial Regulation 51. As clause 3 stood at the moment it might mean that where a criminal prosecution for a minor offence failed, then it would be contrary to lang established practice for action under Colonial Regulation 51 to follow. It was also a long established practice that if an officer's conduct constituted a criminal offence, then he should be dealt with by the courts and not in disciplinary proceedings. Thus, if clause 3 becomes law an officer accepting any advantage should either be prosecuted or no action taken. Mr. Carter said he would like to know the background of this latter long established practice.
Moreover, under the clause in its present form, if the defence pleaded guilty, the court might rule out evidence of actual corruption, on the ground that it was not relevant to a charge of accepting an advantage. If the clause were broken down into two seper te clauses, as suggested, a person accused of the more serious charge could still be convicted of the lesser offence.
It was agreed that the words "whether for himself or any other public servant" should be omitted from clause 3 since the definition in clause 2 (c) was wider,
Mr. Roberts undertook to examine the matter further and to let us know if he wished to ask us to reconsider our attitude to the clause.
Paragraph 4.
It was explained to Mr. Roberts that there were serious difficulties about accepting clause 10 as it stood and Mr. Roberts is to give the matter further thought. It was suggested that provision should be included in the Bill empowering the court that convicted a person of accepting an advantage to order that person to pay to the Crown an amount equivalent to the advantage which the person had been convicted of accepting.
X Paragraph 5.
It was agreed that a suspect or accused person should not be forced to incriminate himself and it was suggested that clause 14 might be amended to provide that an accused person could be called upon to make a statement and that the prosecution could ask the court to draw an inference from any refusal by the accused to do so.
In any event, some provision would be needed to exclude wives of suspects from the application of certain parts of this clause.
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