[COURT OF APPEAL]

REGINA v. ANDREWS-WEATHERFOIL LTD.

REGINA v. SPORLE

REGINA v. DAY

Company - Psyche - Intention - Responsible officer test - Responsibility of company for criminal acts of servants - High executive, responsible agent, manager - Whether actions ipso facto company's

Crime - Corruption - Public body - Offering and agreeing to receive bribe - "Mirror counts" - Whether expression undesirable - "Reward" - Whether antecedent agreement necessary - Public Bodies Corrupt Practices Act 1889 (52 & 53 Vict. c. 69), s. 1

Crime - Practice - July - Verdict - Different trials - Corruption - Offering and agreeing to receive - Acquittal of defendant accused of offering - Conviction of defendant accused of receiving - Whether verdicts ipso facto inconsistent

W Ltd., S (the chairman of the housing committee of a local authority) and D were charged on one indictment under section I of the Public Bodies Corrupt Practices Act 1889¹, with corruption in relation to council building contracts. W Ltd. were convicted on one count of corruptly offering S emoluments arising out of his employment by them as an inducement to or reward for favouring them. D was convicted on one count of corruptly offering S and his wife £500 as an inducement to or reward for promoting the interests of a firm (J. Ltd.). S was convicted, inter alia, of agreeing to receive the £500 from D and of agreeing to receive emoluments from X for favouring a firm (X was later acquitted in a separate trial of offering those emoluments).

W Ltd. appealed against conviction on the grounds, inter alia, that the judge had failed properly to direct as to the criminal responsibility of a company for the act of a servant and failed to deal with the correct factors that in law determined the question whether a criminal intention of an employee was also that of the company. S appealed on the grounds, inter alia, that X having been acquitted in the separate trial of offering emoluments his conviction for receiving them was unsafe because the verdicts were inconsistent. S and D contended that in a charge under section 1 of the Act of 1889 the prosecution must prove a corrupt antecedent agreement for "reward." D further contended that the judge had wrongly

1 Public Bodies Corrupt Practices Act 1889, s. 1: "(1) Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatever as an inducement to, or reward for, or otherwise on account of any member officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned shall be guilty of [an offence]. (2) Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any member officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction, whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of [an offence]."

referred to the counts relating to the £500 as "mirror counts" and in directing the jury that they must return the same verdict on each.

On the appeals:-

Held, allowing the appeal of W Ltd. and dismissing the appeals of S and D, (1) that to make a company criminally responsible it must be established on the facts that the persons concerned had the status and authority to make their acts those of the company; and that the judge had not properly directed the jury to consider whether or not they found those facts proved which he had decided were necessary, as a matter of law, to identify the persons concerned with the company (post, p. 124C-F).

Dicta of Lord Reid in Tesco Supermarkets Ltd. v. Nattrass [1971] 2 W.L.R. 1166, 1176, 1179 applied.

(2) That the verdict "not guilty" included "not proven" and, despite the fact that X had been acquitted of corruptly offering emoluments to S, the conviction of S was not ipso facto inconsistent with the acquittal of X; and that there were no grounds for concluding that his conviction was unsatisfactory (post, pp. 125H-126C).

Per curiam. When persons concerned in a single offence are tried separately and the difference in the evidence consists of additional material favourable to the accused being called at the second trial, the first accused should seek to call that evidence in the Court of Appeal and not rely merely on inconsistent verdicts (post, p. 126D).

(3) That the word "reward" in section 1 of the Public Bodies Corrupt Practices Act 1889, covered receipt of money for a past favour without any antecedent agreement; and that in any event there was ample evidence from which the jury could infer an antecedent agreement for reward between S and D (post, pp. 127H-128A).

Per curiam. Two counts in an indictment may be so closely connected that an acquittal or conviction on one would appear logically to lead to acquittal or conviction on the other. Strict regard for the rules of evidence and the burden of proof however may lead to different verdicts. It is consequently undesirable, however closely the facts of two counts may be, for the judge to adopt the expression "mirror counts" (post, P. 128D).

The following cases are referred to in the judgment.

Rex v. Bond [1906] 2 K.B. 389.

Tesco Supermarkets Ltd. v. Nattrass [1971] 2 W.L.R. 1166; [1971] 2 All E.R. 127, H.L.(E.).

The following additional cases were cited in argument:

Cooper v. Slade (1858) 6 H.L.Cas. 746, H.L.(E.).

Huntingtower (Lord) v. Gardiner (1823) 1 B. & C. 297.

Mawaz Khan v. The Queen [1967] A.C. 454; [1966] 3 W.L.R. 1275; [1967] 1 All E.R. 80, P.C.

Moore v. I. Bresler Ltd. [1944] 2 All E.R. 515, D.C.

Reg. v. Andrews [1967] 1 W.L.R. 439; [1967] 1 All E.R. 170, C.A.

Reg. v. Calland [1967] Crim.L.R. 236.

Reg. v. Carr [1957] 1 W.L.R. 165; [1956] 3 All E.R. 979n., Ct-M.A.C.

Reg. v. Hunt [1968] 2 Q.B. 433; [1968] 3 W.L.R. 231; [1968] 2 All E.R. 1056, C.A.

Reg. v. Lindley [1957] Crim.L.R. 321.

Reg. v. Smith [1960] 2 Q.B. 423; [1960] 2 W.L.R. 164; [1960] 1 All E.R. 256, C.C.A.

Reg. v. Warner (1966) 50 Cr.App.R. 291, C.C.A.

APPEALS against conviction and sentence.

Andrews-Weatherfoil Ltd., heating and ventilating engineers of Slough, Buckinghamshire, Sidney Frederick Charles Sporle and Peter George Day, a construction engineer, were charged on February 8, 1971, at the Central Criminal Court (Judge Edward Clarke Q.C.), on one indictment, of a number of offences contrary to section 1 of the Public Bodies Corrupt Practices Act 1889. Sporle had been chairman of the Battersea Metropolitan Borough Council housing committee until April 1, 1965, when the council became amalgamated with the London Borough of Wandsworth. He then became chairman of the Wandsworth housing committee. Sporle was, at various times, employed by Ellis (Kensington) Ltd., T. Dan Smith, Andrews-Weatherfoil Ltd., and others.

The indictment originally contained 12 counts, including one count against Joseph Capo Bianco, who was acquitted in a separate trial; and another count against T. Dan Smith (who was also acquitted in a separate trial) of offering Sporle emoluments arising out of Sporle's employment by Smith as an inducement to or reward for favouring Fleet Press Services Ltd. in respect of contracts.

Convictions with which the appeals were concerned were:

Count 1. That Sporle on January 4, 1965, being a member and chairman of Battersea housing committee corruptly agreed to receive sums by way of salary and allowances from Ellis (Kensington) Ltd. (electrical engineers) as an inducement to or reward for showing favour or forbearing to show disfavour to Ellis's with regard to the award of contracts.

Count 5. That Sporle, on September 2, 1966, being a member and chairman of Wandsworth housing committee, corruptly agreed to receive for his wife from Day £500 as an inducement to or reward for promoting the interests of John Laing Construction Ltd. in respect of an award by the council of a contract.

Count 6. That Day, between January 1 and September 2, 1966, corruptly offered Sporle and his wife the £500.

Count 7. That Sporle on a day between October 31, 1966, and April 29, 1967, corruptly agreed to receive emoluments arising from his employment by Andrews-Weatherfoil Ltd. as an inducement to or reward for showing favour in respect of the award of contracts.

Count 8. That Andrews-Weatherfoil Ltd. on a day between October 31, 1966, and April 29, 1967, corruptly offered Sporle such emoluments.

Count 9. That Sporle on April 28, 1967, corruptly solicited from Walter Harding for Andrews-Weatherfoil Ltd. the employment of Andrews-Weatherfoil by Harding, McDermott & Partners on a housing scheme as an inducement to or reward for Sporle showing favour to Harding, McDermott & Partners in respect of their present or future employment on council housing schemes.

Count 10. That Sporle corruptly agreed to receive from T. Dan Smith emoluments arising from his employment as an inducement to or reward for showing favour to Fleet Press Services Ltd. in respect of the award of contracts by the council.

Andrews-Weatherfoil Ltd. appealed against conviction on the grounds "(A 2)" of failure properly to direct on law as to the criminal responsibility of a limited liability company for the acts of a servant, and "(A 3)" failure to deal with the correct factors that in law determined the question whether a criminal intention in an employee was also that of the company. They also sought leave to appeal on other grounds, not relevant to this report.

Sporle applied for leave to appeal: on count 1 on the ground that the judge had failed clearly to direct the jury that the prosecution had to prove corruption at the time of his entering the employment of Ellis (Kensington) Ltd. and that proof of a later supervening corruption in him or the company entailed his acquittal; and that the judge had failed to remind the jury that there was no evidence of corruption until after he had become employed by them. On count 5 that the judge failed clearly to direct the jury that they must be satisfied that his promotion of the interests of John Laing Construction Ltd. was motivated by a corrupt antecedent arrangement between him and Day that he would receive a reward from Day in return for his promotion of the company's interests. On counts 7 and 9 that if Andrews-Weatherfoil's appeal against conviction succeeded on count 8 on the grounds on which they were given leave to appeal, then his conviction on counts 7 and 9 were unsatisfactory. On count 10 that his conviction was unsafe and unsatisfactory since Smith had been acquitted at the separate trial of offering the emoluments to Sporle.

Day appealed against his conviction on count 6 on the grounds that the judge had wrongly directed the jury that counts 5 and 6 were locked together and that they were obliged to return the same verdict on each whereas there could have been a guilty verdict on count 5 and not guilty on count 6; and contended that the term "mirror counts" was undesirable.

Both Sporle and Day relied on contentions that in a charge under section 1 of the Public Bodies Corrupt Practices Act 1889, there must be proof of an agreement for reward in contemplation of future favours.

Sentences were passed on March 24, 1971. Andrews-Weatherfoil Ltd. were fined £10,000 and ordered to pay one-fifth of the taxed costs or £3,000 whichever was the less. Sporle was sentenced to a total of six years' imprisonment: 18 months concurrent on counts 1 and 2, 18 months on counts 4 and 5, 18 months on counts 7 and 9 and 18 months on count 10. Day was sentenced to 18 months' imprisonment.

After judgment relating to convictions, the hearing of the applications for leave to appeal against conviction was treated as the hearing of the appeals. The hearing of the applications for leave to appeal against sentence was treated as the hearing of the appeals.

The facts are stated in the judgment of the court.

Victor Durand Q.C. and John Nutting for Andrews-Weatherfoil Ltd.

John Hazan Q.C. and A. Lewisohn for Sporle.

John Platts-Mills Q.C. and Peter Crawford for Day.

John Buzzard and Michael Neligan for the Crown.

October 11. LORD WIDGERY C.J. I will ask Eveleigh J. to read the judgment of the court so far as it concerns appeals or applications for leave to appeal against conviction.

EVELEIGH J. On March 23, 1971, at the Central Criminal Court in a trial which lasted over six weeks, Andrews-Weatherfoil Ltd., Sidney Frederick Charles Sporle and Peter George Day were charged with bribery and corruption under the Public Bodies Corrupt Practices Act 1889, section 1, in relation to council building contracts of the Battersea Metropolitan Borough Council and the London Borough of Wandsworth Council

when Sporle was member and chairman of the housing committee or member of the council.

Count 1 charged that Sporle on January 4, 1965, corruptly agreed to receive a salary from Ellis (Kensington) Ltd. as an inducement to or reward for favouring them. Count 2 alleged a similar agreement in respect of salary from Property Estates Development Ltd. again for favouring Ellis (Kensington) Ltd. Count 3 alleged a similar agreement on January 27, 1967, to receive a motor car from Property Estates Ltd. for favouring Ellis (Kensington) Ltd. Count 4 alleged that Sporle corruptly solicited from one Culpin employment for Ellis (Kensington) Ltd. on account of Sporle favouring or forbearing to disfavour the said Culpin. Count 5 charged Sporle with agreeing on September 2, 1966, to receive £500 for his wife from Day as "an inducement to or reward for . . . promoting the interests of John Laing Construction Ltd." Count 6 charged Day with corruptly offering the £500. Count 7 alleged that between October 31, 1966, and April 29, 1967, Sporle corruptly agreed to receive emoluments from employment by Andrews-Weatherfoil for favouring them. On count 8 Andrews-Weatherfoil were charged with corruptly offering Sporle the emoluments. Count 9 alleged that Sporle on April 28, 1967, corruptly solicited from one Harding employment for Andrews-Weatherfoil upon a housing scheme of the council on account of Sporle favouring or forbearing to disfavour Harding's firm. In this count Andrews-Weatherfoil and their employee Green were charged with aiding and abetting Sporle. Count 10 alleged that Sporle between November 1, 1965, and July 6, 1967, agreed to receive emoluments from one T. D. Smith for favouring Fleet Press Services Ltd.

Andrews-Weatherfoil were found guilty on count 8 but they and Green were acquitted on count 9. Sporle was found guilty on all counts except count 3. Day was found guilty on count 6.

T. D. Smith was granted a separate trial in respect of offering the emoluments referred to in count 10. One J. C. Bianco was granted a separate trial in respect of a charge alleging that he corruptly solicited advantages for Sporle from Culpin in return for Sporle favouring Culpin. Both Smith and Bianco were subsequently acquitted by the jury.

Andrews-Weatherfoil were given leave to appeal against conviction on two grounds A2 and A3 of their notice of appeal, and seek leave to appeal after refusal on other grounds. Sporle seeks leave to appeal against conviction in respect of counts 1, 5, 7, 9 and 10 and Day seeks leave to appeal against his conviction, in each case after refusal by the single judge.

The prosecution's case was that Sporle used his position on the council to obtain sums of money in return for support in obtaining building contracts from the council. The evidence showed, it was said, a systematic course of conduct to show favour where he had financial expectations and that when he acted in purported discharge of his duties to the council he failed to disclose his interest. In this way it was sought to show that he acted intending to benefit his employers or their nominees without regard to the interest of the council. Once his support for candidates for contracts from the council was shown to be given with improper intentions or motives (it being too much of a coincidence that so often those he supported turned out to be his employers) there was material relevant to the question of the existence of an antecedent agreement to do so in return for benefits to himself which the evidence showed he received.

In this connection the fervour of his support for the cause of his

employers was also relied upon. Thus it was said he was so determined to assist Ellis (Kensington) Ltd. that he even threatened Mr. Culpin - an independent architect appointed to carry out some of the council's plans - with the possible loss of council work unless Ellis (Kensington) Ltd. were given sub-contracts. So too, in relation to Andrews-Weatherfoil Ltd. he made a similar threat to Mr. Harding. Both of these gentlemen refused to be coerced.

The grounds upon which Andrews-Weatherfoil were given leave to appeal were: A2. Failure properly to direct on law as to the criminal responsibility of a limited liability company for the act of a servant. A3. Failure to deal with the correct factors that in law determine the question whether a criminal intention in an employee is also that of the company.

On examination these two grounds overlap for in the present case the offence was not an absolute statutory offence but involved criminal conduct and a guilty mind on the part, it was said, of the company's senior employees. The question therefore of the status and authority of the person or persons responsible was of great importance.

The prosecution concedes and in the view of this court rightly concedes that the judge's direction was not adequate.

There were three people who were alleged by the prosecution to have the status and authority to involve the company itself in criminal liability for corruption in connection with the offer of employment to Sporle as a reward for anticipated favours from him. Those three were Mr. Neuman, the managing director, Mr. Allen, a "technical" director, and Mr. Williams, the manager of the or a housing division. That these three were concerned in the engagement of Sporle there is no doubt. The actual offer of employment was made by Mr. Neuman in a letter which Allen had some part in drafting. Whether or not it was one, two or all of these three who sought or were party to seeking favours for Andrews-Weatherfoil from Sporle as a return for the offer of employment was, as is usually the case, a matter of inference from the evidence. The judge directed the jury as follows:

"If an act is done by anyone who is in control of a company and who is in authority to perform an important act of that sort then that act of that person can be the act of the company itself. . . . if an act is done by a responsible agent of a company and if in the course of that act that agent commits an offence and he does it in the name of the company then the company is liable . . . if an agent acts corruptly on behalf of the company the corruption of the agent is the corruption of the company. That is not an absolute rule it is a principle which depends on the circumstances of the offence."

And again:

". . . if one of these people, Williams or Allen or Neuman or any combination of them acting as a high executive of Andrews-Weatherfoil indulges in the employment of a person to act corruptly to further the interests of the company of which that man is one of the executive directors the company is responsible and the company is guilty of a criminal offence."

On counsel drawing the judge's attention to the fact that Williams was not a director he continued:

"There is no magic in being a director. If you are the manager of the housing department or in any high executive position in such a way that you can recommend to your managing director that someone should be employed, as it is said Allen (sic) recommended Sporle, in those circumstances the person who recommends it, who is in a high position, if you are satisfied that he did that in the name of the company and it was corrupt the company can be liable. . . . That is a matter for you as to whether or not you are satisfied that that employment by Sporle was done with the approval and knowledge of a high executive of Andrews-Weatherfoil acting as an agent of the company for the purpose of his employment and that employment to the knowledge of the executive or executives was corrupt."

It is not every "responsible agent" or "high executive" or "manager of the housing department" or "agent acting on behalf of a company" who can by his actions make the company criminally responsible. It is necessary to establish whether the natural person or persons in question have the status and authority which in law makes their acts in the matter under consideration the acts of the company so that the natural person is to be treated as the company itself. It is often a difficult question to decide whether or not the person concerned is in a sufficiently responsible position to involve the company in liability for the acts in question according to the law as laid down by the authorities. As Lord Reid said in Tesco Supermarkets Ltd. v. Nattrass [1971] 2 W.L.R. 1166, 1176:

"It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."

Lord Reid added, at p. 1179:

"I think that the true view is that the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company."

It follows that it is necessary for the judge to invite the jury to consider whether or not there are established those facts which the judge decides as a matter of law are necessary to identify the person concerned with the company. This was not done in the present case.

The court was invited to apply the proviso to section 2 (1) of the Criminal Appeal Act 1968. It is not possible, however, to decide whether or not the jury regarded Mr. Neuman, Mr. Allen or Mr. Williams, or any or what combination of them as responsible for the criminal act. Mr. Williams' position in the company is not at all clear and the description "housing manager" does not succeed in making it so. To a lesser extent this is true of Mr. Allen. Consequently it is impossible to say that the jury would have arrived at the same verdict if properly directed and it follows that this appeal must succeed. In so far as Andrews-Weatherfoil seek leave to appeal on other grounds it will be sufficient to say that leave is not granted.

Sporle: count 1. The applicant contended that the judge failed clearly to direct the jury that corruption had to be proved at the time of the applicant entering the employment of Ellis (Kensington) Ltd. and that

proof of a later supervening corruption was not enough. The prosecution had presented the case on that basis. The date alleged in the particulars, namely, January 4, 1965, was not vital in this kind of charge but coupled with the way in which the case had been presented it meant, as Mr. Buzzard properly conceded, that the beginning of Sporle's employment was the material period. Whilst it is true that the judge said "Whether it was January 4 or thereabouts matters not" he went on to say that the allegation in count 1 was that Sporle was employed on that date substantially for the purpose of putting forward Ellis's interests and that he was paid over £1,000 a year from January 1, so that

"If you are satisfied so that you are sure that he agreed to receive that money in return for those favours you ought to find him guilty. If you are not satisfied you find him not guilty."

It was also contended that the judge failed to remind the jury that there was no evidence of corruption until after the applicant had become employed by the company. The judge did in fact remind the jury that Sporle had been employed by a Mr. Nixon, the sales manager (Mr. Ellis did not give evidence), and that according to Nixon there had been some preliminary discussion as to approaching the council, but it was made clear to Sporle that he was debarred from doing so. The judge further told the jury that the nub of the allegation against Sporle was his threat to Mr. Culpin in March 1965, that is after he began to work for Ellis. The applicant's contentions are unfounded. The judge summed up the facts fairly to the jury and there was clear evidence from which the jury were entitled to infer a corrupt agreement at the beginning of Sporle's employment.

Count 5. This count can conveniently be dealt with at the same time as count 6 on which Day applies for leave.

Count 7. It is claimed that if Andrews-Weatherfoil succeed on the grounds stated in A2 and A3 of their notice of appeal, Sporle's conviction is unsatisfactory.

In returning a verdict of guilty against Andrews-Weatherfoil, the jury must have concluded that a corrupt offer of employment with the company had been made to Sporle and accepted by him. This court had only decided that the jury were not properly directed as to whether or not the person making the offer was in such a position as to involve the company in criminal liability. This decision in no way affects the question whether or not Sporle corruptly agreed to accept employment.

Count 9. It is claimed that if Andrews-Weatherfoil succeed as above, the conviction of Sporle on count 9 is unsatisfactory. This argument is very difficult to follow for count 9 alleges that Sporle personally made a corrupt request himself to Mr. Harding. The point of law in the appeal of Andrews-Weatherfoil on count 8 has no relevance to the question as to whether or not Sporle made such a request.

Count 10. It is said that as Smith was acquitted on July 12, 1971, on the charge of corruptly offering emoluments to Sporle, Sporle's conviction for corruptly accepting those emoluments is unsafe.

As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Such a result may be due to differences in the evidence presented at the two trials or simply to the different views which the juries separately take of the

witnesses. That the result produced by such inconsistency is "unsatisfactory" cannot be disputed but it is the unsatisfactory character of the guilty verdict to which section 13 of the Criminal Appeal Act 1968 is directed, rather than an unsatisfactory result of the two trials as a whole. When inconsistent verdicts are returned by the same jury, the position is usually more simple. If the inconsistency shows that that single jury was confused, or self contradictory, its conclusions are unsatisfactory or unsafe and neither verdict is reliable. Very often, however, an apparent inconsistency reflects no more than the jury's strict adherence to the judge's direction that they must consider each case separately and that evidence against one may not be admissible against the other: for example, where there is a signed confession. So too, where the verdicts are returned by different juries the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it. The verdict "not guilty" includes "not proven." We do not therefore accept Mr. Hazan's submission that inconsistent verdicts from different juries ipso facto renders the guilty verdict unsafe. If, as will usually be the case, the evidence at the two trials was significantly different this not only explains the different verdicts but also defeats the claim that inconsistency alone renders the guilty verdict unsafe. If the difference in the evidence consists of additional material favourable to the accused being called at the second trial, the first accused should seek to call that evidence in this court and not rely merely on the inconsistent verdicts.

The jury in the present case had the opportunity of hearing Sporle in the witness box, and there has been no suggestion that evidence favourable to Sporle was given in Smith's trial which was not given in the trial of Sporle. There are, therefore, no grounds for concluding that the verdict against Sporle was unsatisfactory.

Counts 5 and 6: Sporle and Day. In April 1965 in the Grosvenor Hotel, Sporle met Day and one Cameron, employed by John Laing Construction Ltd. from whom Day stood to receive commission in the event of Laings being awarded a contract by the council. There was evidence that subsequent to this meeting Sporle furthered the interest of John Laing until April, 1966, when a letter of intent was sent by the council to Laings with the object of employing them. On September 1, 1966, Mr. Brennan, managing director of the company, signed a contract of employment between the company and Sporle. Day was out of the country. On September 2, it was arranged between Sporle and Brennan that the sum of £500, being Sporle's fee under the contract, should be paid to Sporle's wife. Although the letter of intent was not the final contract, and there were further necessary negotiations before the contract was concluded in March 1967, the case was not presented on the basis that Sporle was being remunerated in September 1966 for any assistance thereafter.

It was contended on behalf of Sporle and Day that it was necessary in a charge under section 1 of the Public Bodies Corrupt Practices Act 1889 to establish a corrupt agreement for reward in contemplation of future favours, and that a reward post facto unrelated to any such earlier agreement was not enough. It was contended that the judge did not make this clear to the jury.

Section 1 (1) of the Public Bodies Corrupt Practices Act 1889 reads:

"Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward or advantage

whatever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the said public body is concerned, shall be guilty of" an offence.

There is no doubt that the word "reward" can be given the natural meaning of a post facto gift without any antecedent agreement. It was argued, however, that the word "doing" was the present participle and that to bring within the section a reward made without an agreement which preceded the favour was to construe the verb as though it read "having done." A similar argument was directed to the use of the present tense in the phrase "in which the said public body is concerned."

The court's attention was drawn to the wording of section 1 of the Prevention of Corruption Act 1906 in which the past tense is specifically used in the phrase "for having after the passing of this Act done or forborne to do any act," etc., etc. However, the specific use of the past participle in that statute was by way of contrast to preceding present participles in order to express Parliament's intention that a reward for a past act without antecedent agreement would only be an offence in respect Of an act done after passing of the statute. It was also pointed out that section 99 (2) (b) of the Representation of the People Act 1949 uses the words "corruptly does any such act as aforesaid on account of any voter having voted or refrained from voting." Again this court does not find the reference to the wording of another statute helpful in construing the relevant section in the present case. Section 99 of the Representation of the People Act 1949 sets out in separate clauses the different acts which were made to constitute bribery. A distinction appears in the clause to which counsel referred in that the word "corruptly" is introduced which does not appear in the other clauses setting out other acts which are made to constitute bribery.

The court does not say that another statute in pari materia may not be looked at as an aid to construction in an appropriate case but when as in the present case the court is satisfied as to the meaning on the natural wording of the section it is neither necessary nor desirable to refer to other statutes enacted for different purposes.

This court is of the opinion that it would be unnatural not to give a post facto meaning to the word "reward." It is to be noted that that word is not only used in association with the words "gift," "loan," "fee" and "advantage" but is repeated in contradistinction to "inducement" in the phrase "as an inducement to or reward for." The use of the present tense in the phrase commencing with the words "doing or forbearing to do . . . ." is equally applicable to past or future conduct seeing that that phrase is simply descriptive of the nature of the activity for the time being contemplated as the subject matter of the inducement or reward.

This court then is of the opinion that the statute covers receipt of money for a past favour without any antecedent agreement and it was open to the jury to convict both accused on this basis.

However, the judge in fact left the case to the jury on a more favourable basis, for taken as a whole his direction indicated that they should look for an agreement before April 1966. He specifically said:

". . . of course, if the £500 and any suggestion of any money was not given until after everything was over, and there was no suggestion

that he was to have an inducement or reward beforehand that would not be good enough."

There was in fact ample evidence from which an antecedent agreement could be inferred and consequently this ground for leave to appeal fails.

On behalf of Day, Mr. Platts-Mills made a number of points on various passages in the summing up, and contended that the jury had not been reminded of parts of the evidence favourable to his client. The court has carefully considered those submissions, but it has no doubt that the case for Day was adequately and fairly put.

It was also said that the judge wrongly directed the jury to the effect that Day would be responsible for the contract signed by Brennan when Day was out of the country. In the view of this court the judge made it perfectly clear that it was necessary for the jury to be satisfied that Day, as the judge himself said, "knew that this was going to be done and was a party to it."

It was further argued that the judge had wrongly referred to counts 5 and 6 as "mirror counts" indicating to the jury that they should stand or fall together. It was said that on the facts of the present case this resulted in the jury taking into account Sporle's activities in relation to the other transactions such as those concerning Ellis and Andrews-Weatherfoil.

Two counts in an indictment may be so closely connected that an acquittal or conviction on one would appear logically to a layman to lead to an acquittal or conviction on another. The strict regard for the rules of evidence and the burden of proof however may lead to different verdicts, as those practising in the courts are well aware. It is consequently undesirable, however closely connected the facts of the two counts may be, for the judge to adopt the expression "mirror counts."

In cases of corruption it is possible to envisage a bribe being corruptly offered and innocently accepted and possible even the other way round. On the facts of the present case however it is impossible to conceive that the £500 was corruptly received by Sporle unless corruptly given by Day. The court recognises that Sporle's conduct on the council in relation to the other accused would be an important factor in the deliberations of the jury, but it is of the opinion that the evidence relating thereto was admissible in the case against Day.

In the forefront of the case was the allegation that Sporle was actively engaged in supporting Laing's quarrels with the council. This Sporle was entitled to do if he was acting with the council's interests in mind, but was not entitled to do if he acted with a corrupt motive. The state of Sporle's mind was consequently relevant. Evidence of system is admissible for this purpose to show Sporle's intention and whether his support in the council was proper and innocent on the one hand, or improper and corrupt on the other. In Rex v. Bond [1906] 2 K.B. 389, 421, A. T. Lawrence J. said:

"Where, however, acts are of such a character that, taken alone, they may be innocent, but which result in benefit or reward to the actor and loss or suffering to the patient, repeated instances of such acts at least show that experience has fully informed the actor of all their elements and details, and it is only reasonable to infer that the act is designed and intentional, and its motive the benefit or reward to himself or the loss or suffering to some third person."

One might appropriately add "or to benefit or reward those from whom he had expectations." The fact that the conduct was that of Sporle and

not of Day does not detract from the relevance of the evidence. The result is that the appeal of Andrews-Weatherfoil Ltd. will be allowed on grounds A2 and A3 of their notice of appeal and their conviction will be quashed. In relation to the other grounds and to the applications of Sporle and Day, leave to appeal is given and the appeals dismissed.

LORD WIDGERY C.J. I can now pass to sentence upon which it is not necessary to deal with the considerations at very great length because they really are all apparent from the judgment which has already been delivered, save only to add that which has been so admirably added by Mr. Hazan on behalf of Sporle, and the one matter was the very large credit side of the account which Sporle can claim in view of his long and distinguished record with these local authorities. This is an example of a case, which arises not, happily, often, but from time to time where a man of perfect character who has done a great deal of exceptionally good work for the community commits a serious breach of his trust and eventually stands his trial and is convicted for it. The courts have always, we think rightly, taken the view that such cases must be marked with a substantial sentence of imprisonment. There are many others in the books of recent years of which that can be said.

It is, however, considered that when due regard is had to what I have called the credit side of the account, that a total of six years is excessive and is greater than is merited by the circumstances of this case. We find it unnecessary to say more than that. We accede to that argument, we think it is possible now, having reviewed both sides of the matter, to reduce the sentence upon Sporle to some degree, and in regard to the application for leave to appeal against sentence we shall grant leave to appeal with the consent, which I am sure will be forthcoming, from Mr. Hazan; we shall treat the application as the hearing of the appeal and in respect of each sentence of 18 months we shall substitute a sentence of 12 months. This will result in a total period of imprisonment of four years as against the period of six years' imprisonment imposed by the judge.

So far as Day is concerned, it is we think obvious that he should be regarded on the same basis as Sporle in regard to the one incident with which he was concerned, and we shall make a corresponding reduction in his case. Accordingly, we shall grant him leave to appeal against sentence; with Mr. Platts-Mills' concurrence we shall treat the application as the hearing of the appeal, and for the sentence of 18 months' imprisonment we shall substitute a sentence of 12 months' imprisonment.

October 25 and November 9, 1971. Certificates that points of law of general public importance were involved in the decision as follows.

Sporle: Count 5: "Whether on the true construction of section 1 of the Public Bodies Corrupt Practices Act 1889 it is an offence corruptly to agree to receive a reward in respect of past acts and forbearances.

Count 7: "Whether the defendant's conviction for corruptly agreeing to receive emoluments arising from his employment by Andrews-Weatherfoil Ltd. for showing the said company favour in respect of the award of

building contracts must be unsafe or unsatisfactory in view of the quashing of the conviction of the said company on count 8 . . . for corruptly offering the defendant such emoluments arising out of his said employment for showing them such favour."

Count 10: "Whether the defendant's conviction for corruptly agreeing to receive emoluments from his employment by Smith for showing favour to Fleet Press Services Ltd. must be unsafe or unsatisfactory in view of Smith's acquittal at a subsequent and separate trial . . . for corruptly offering the said emoluments to the defendant arising out of such employment."

Day: Count 6: "(1) Whether on the true construction of section 1 of the Public Bodies Corrupt Practices Act 1889 it is an offence corruptly to agree to offer (or receive) a reward in respect of past acts and forbearances. (2) What is the proper direction to a jury when two or more persons are tried on the same indictment for committing linked or complementary offences when evidence has been given of system, motive, conduct or character which is admissible against one or some of the accused but not against the other or others."

Solicitors: Lawrence, Graham & Co.; Kingsley Napley & Co.; J. R. Phillips & Co.; Director of Public Prosecutions.

Z. D.