Joint Committee on The Draft Corruption Bill Written Evidence


Supplementary memorandum from Mr Justice Silber (DCB 33)

  1.  I was pleased to have had the opportunity of giving evidence to the Committee, but there are a number of outstanding matters on which I need to comment. First, I will make some comments on the drafting of the draft Bill. Second, I will deal with the Chairman's example where two businessmen are considering tendering for a contract and one gives to the other £100,000 so that he does not tender (Q612) and thirdly, I will comment on the issue raised by Lord Waddington of the baggage handler who was offered £10 to get somebody's luggage first (Q655). Finally, I will explain why the interesting offence envisaged by Dr Turner (Q657) would not deal with the problems of corruption.

  2.  A critical point in understanding what is covered by the draft Bill is that corruption is, in the words of the Oxford English Dictionary conduct, which would "destroy or pervert the integrity or fidelity of (a person) in the discharge of duty". I stress the significance of the word "duty". As I will explain, some of the wrongful or the alleged wrongful conduct raised by the Committee when I gave evidence falls outside the scope of any offences on corruption. The draft Corruption Bill is not concerned with restrictive practises or any fraudulent conduct, which does not fall within the scope of corruption as defined above.

  3.  Lord Justice Rose, Vice-President of the Court of Appeal (Criminal Division) has authorised me to say that in answer to a request from the Home Office, he has written to say that he approves of the draft Bill.

 (i)   Drafting points on the draft Bill

  4.  There are two suggestions that I have to make on the drafting. The first is that the word "functions" in clauses 5, 6, 7, 10 and 11 should be replaced with the word "duties" or there should be a provision defining "functions" as including "duties". As I explained when I gave oral evidence, the purpose of the legislation is to penalise those who are coerced into failing to perform their duties. That accords with the definition of corruption in the Dictionary as explained in paragraph 2 above.

  5.  Indeed, if an agent is persuaded to recommend acceptance of a particular tender in return for a payment, the basis of his criminal liability is that he has thereby been induced into not performing his duties. This payment does not interfere with his functions, which are to make recommendations on the tender that should be accepted, but it does undermine his duty, which is to ensure that he recommends acceptance of the tender most favourable to his principal.

  6.  The second suggestion would be that the ingredients of the particular offences should be spelt out in full, rather than by reference to other parts of the legislation. At present, the offences are set out in clauses 1, 2 and 3 with the further requirements of each of the three offences then set out in different clauses scattered around the Bill.

  7.  I, for my part, would find it much easier to understand the draft Bill if all the ingredients of each offence were set out in the same provisions. That would mean that clause 1, dealing with corruptly conferring and advantage might read as follows:

      1.  A person commits the offence of corruptly conferring an advantage if the following five requirements are satisfied.

      2.  The first requirement is that the person does something (for example, makes a payment) or he omits to do something, which he has a right or duty to do [this is clause 4 (1)(a)]

      3.  The second requirement is that this act or omission is done or made in consequence of another's request (express or implied) or with the result (direct or indirect) that another benefits [this is clause 4(1)(b)].

      4.  The third requirement of conferring the advantage corruptly can be satisfied in one of two alternative ways. The first way is if the person who confers the advantage or offers or agrees to confer advantage (i) intends a person (A) to do an act or make an omission in performing functions as an agent of another person, (B) or as an agent of the public and (ii) he believes that if A did the act or made the omission, it would be primarily in return for the conferring of the advantage (or the advantage which he conferred) whoever obtains it.

      5.  The second way in which the third requirement can be satisfied is if the person who confers an advantage or offers or agrees to confer an advantage (i) knows or believes that a person A has done an act or made an omission performing functions as an agent of another person B or as an agent of the public (ii) knows or believes that A has done the act or made the omission primarily in order to secure that a person confers an advantage (whoever obtains it) and (iii) intends A to regard the advantage (or the advantage when conferred) as conferred primarily in relation for the act or omission.

      6.  The fourth requirement is if the agent is acting on behalf of a principal or the public in circumstances set out in [what was clause 6].

      7.  The fifth requirement is that the principle does not consent in any of the circumstances set out in [what was clause 7].

  8.  There would then have to be separate provisions in the form of what are now clauses 6 and 7, which would apply to each of the other offences.

 (ii)   The Chairman's example of a businessman offered money so as not to tender against a competitor in return for a payment (Q612)

  9.  The Chairman gave the interesting example of a businessman who is given £100,000 not to tender against a competitor and then takes the money and does not tender. Lord Campbell-Savours also asked about it (Q615 and 616). This has nothing to do with corruption as neither businessman is interfering with a duty owed by either to the tendering party. Section 188 of the Enterprise Act 2002 contains offences relating to cartels and they include a specific bid rigging offence. In addition, the Chairman's example would probably be a conspiracy to defraud, which is a very wide offence. The term "intent to defraud" was held to mean "to practice a fraud" in Welham [1961] AC 103 per Lord Denning.

 (iii)   Lord Waddington's example with the baggage handler (Q655)

  10.  Lord Waddington raised the interesting question of the criminal liability of a baggage handler at an airport, who was given money by a passenger in order to try to extract an item of luggage of that passenger before recovering the luggage of other passengers. On the assumption that the contractual duty of the baggage handlers as employees of the airport authority was to recover luggage in a certain order and not to favour any particular passenger, then if a particular baggage handler accepts money in order not to perform this duty, it would be a corrupt payment under the terms of the draft Bill. This is not an undesirable consequence as otherwise he who pays most to a baggage handler would obtain his luggage earliest.

 (iv)   Dr Turner's suggested formulation of a new offence

  11.  Dr Turner asked me (Q657) if a way of expressing a crime of corruption might be by way of an analogy with a crime for attempting to pervert the course of justice. He thought one way that it could be expressed was:

    "to have a crime (a) to frustrate or pervert or interfere with the proper functioning of government, the administration of justice or the delivery of public services, and then (b) to pervert, frustrate or affect detrimentally the proper functioning of competitive markets. That, for instance, would cover the kind of situation I was talking about where you had contractors forming a cartel to force up prices in bidding for local government services. Would you agree that if there was a formulation like that you would not need the complexity of the principal/agent relationship and you might not need to include or define the word `corruptly'?"

  12.  I regret to say that I do not consider that this thoughtful formulation would meet the problem of those who confer or take an advantage in order not to perform their duties. That is the essence of corruption, which is not concerned with, perverting, frustrating or affecting detrimentally the proper function of competitive markets as that is the function of competition law or insider dealing, which is a different area and which is outside the scope of the present project. It does not fall within the definition of corruption as explained in paragraph 2 above. The Law Commission is working on reporting offences of fraud and it might well be that their proposed offences would or should cover these matters.

  13.  Another problem is that the suggested formulation in Dr Turner's question would not cover the case where an individual gives a sum of money to, say, a goalkeeper in return for a promise from him that he would deliberately let in goals in a football match. That conduct would undoubtedly be corrupt conduct but it would fall outside Dr Turner's formulation, which is not based on a breach of duty.

  14.  In any event, I consider it very important for offences to be sufficiently clear so that people know in advance what they can and cannot do. I am bound to say with respect that I do not consider the suggestions (a) or (b) in Dr Turner's formulation are sufficiently well-defined. I have no idea whether particular conduct would "frustrate .. the delivery of public services" or "pervert, frustrate or affect detrimentally the proper function of competitive markets". There is likely to be uncertainty about what is meant by "the delivery of public services" and "the proper function of competitive markets". I fear that Dr Turner's formulation might mean that it would be difficult for prosecutors and citizens to know what conduct was being criminalised.

  15.  I hope that I have now answered all the outstanding points but if I have not or if I can help the Joint Committee in any way, I would be pleased to try to do so.

June 2003

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