The offence of trading in influence and its impact on legitimate influence practices

Abstract

“[…] like an elephant, while it may be difficult to describe, corruption is generally not difficult to recognize when observed….Unfortunately, the behaviour is often difficult to observe because acts of corruption do not typically take place in broad daylight.” Vito Tanzi In the same way as it is easy to recognize corruption when it is observed, trading in influence should also be easily recognized when it takes place. However, the clandestine nature of corruption offences such as trading in influence make such an offence difficult to detect, in some cases, because it can be disguised as an activity which seems to be legitimate. The objective of the law is thus not to give us definitions but to clearly identify the elements which constitute the offence so that confusion and discrepancies are avoided and legal certainty is ensured. International reports show that many countries still choose not to criminalise the offence of trading in influence due to a number of concerns which are delved into and discussed throughout the thesis by looking at the Maltese experience with the offence of trading in influence as well as that of France, Spain and Belgium, all of which, to some extent or another, have criminalised the offence. In addressing the main issue of the lack of clarity and the danger of having legitimate influence practices being caught under the provisions criminalising the offence of trading in influence, this Thesis sets out to analyse the elements of the offence of Trading in Influence and its sources and the problems encountered in the implementation of this offence in national criminal law. The elements of the offence as transposed into the Maltese Criminal Code from the COE Criminal Law Convention on Corruption are analysed and local case law is presented so as to portray the manner in which the offence of trading in influence is dealt with by the Maltese Courts. One of the main reasons that a number of states put forward to justify their decision not to fully implement the offence of trading in influence into national law is the lack of clarity of the concept that the offence seeks to criminalise as well as an overlap between the offence of trading in influence and legitimate forms of lobbying which could lead to legitimate activities being caught by the provisions of the offence. This problem is analysed and discussed throughout this thesis and recommendations so as to avoid the confusion caused by such an overlap are provided.