Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witnesses (Questions 60-79)


14 MARCH 2003

  Q60  Chairman: One thing which is going to be very important for the Committee to consider is to what extent has the draft Bill made it easier to prosecute once you have detected. Is the form of the present Bill going to make it more difficult, to use Sir David's expression, for judges to sum up to juries? Is it going to be more difficult for you to be sure that what has happened falls within the definition of corruption, or will it make it less so?

  Mr Wardle: I think it will make it different. Whether it is going to make it easier or more difficult remains to be seen in the way that judges are able to sum these cases up to juries, depending on the evidence that we are able to put before the courts.

  Q61  Chairman: All right. The Bill came into force this morning, and you have to decide today whether to prosecute somebody for corruption. Are you happier today than you would have been yesterday, or less happy today than you would have been yesterday?

  Mr Wardle: Probably equally unhappy.

  Q62  Mr Stinchcombe: Would you be happier if the clauses defining the meaning of the word "corruption" were made simpler?

  Mr Wardle: Yes, I think so.

  Sir David Calvert-Smith: So would I.

  Q63  Chairman: One thing which was raised yesterday, I think by Lord Waddington, was the question of dishonesty. The word "dishonesty" does not strike you in the Bill except by its absence. Should there be some reference here to dishonesty?

  Mr Wardle: I think that the Law Commission consultation paper concluded that corruption was not necessarily an offence of dishonesty, although in our cases I think very often, if not always, dishonesty is present. In practical terms, I think juries are very unwilling to convict unless they see some sort of dishonesty, or at least moral turpitude that they can really get a grip on in the way that people have behaved. Very few of the cases that we would prosecute would not involve dishonesty.

  Q64  Lord Waddington: Did not the Law Commission itself say—I am looking at paragraph 5.128—that corruption is usually, perhaps always, dishonest in the ordinary sense of the word? All they were doing was drawing a distinction between the general meaning of dishonesty on the one hand, and specific offences of dishonesty, where there is an intention to deprive people of property, on the other. Actually, would not one obvious advantage flow from importing the concept of dishonesty? Take, for instance, this matter of facilitation payments. My understanding is that under the Bill as at present drafted, if a person were to make a payment to another person to get his legal rights, with no dishonest intent but purely because he had to nudge a fellow to actually get that to which he was entitled, that would be criminal. Is that not a sheer nonsense, that we should start off with a Bill which stigmatises as criminal something which ordinary people know is not morally wrong? The way of getting round that might be to import the question of dishonesty, do you not think, or perhaps even what the CBI thought might do the trick; they talk of importing the word "improper" into the definition? What do you think of all that?

  Mr Wardle: In practical terms, I think persuading the police to use their resources to investigate such an allegation would be quite difficult. I do not think they would, and we certainly would not. Then there is the question of prosecutorial discretion; it would rarely be in the public interest to prosecute in such cases even though the offence might technically be made out.

  Lord Waddington: I am sorry to interrupt you, but I think there is a real point of principle here. We are going to talk later about whether the Attorney should give his consent, but you should not have a device like the Attorney's consent as a longstop to prevent a prosecution for something which should never be prosecuted anyhow because it is not wrong. Surely there is something seriously wrong with a Bill if it stigmatises as criminal something which should not be criminal, and it is not sufficient to say, "Oh, well, if we are sensible people, we will never prosecute them for it."

  Q65  Chairman: Are you saying that to include dishonesty might exclude certain cases which ought to be prosecuted as falling within corruption?

  Mr Wardle: I suspect that is the case, although I cannot for the moment think of any examples from my work with the Serious Fraud Office, because we are of course dealing with fraud and not necessarily other issues. Obviously, in the public sector you would not necessarily say that this was fraud in the way you would corrupt a public servant.

  Q66  Chairman: Another suggestion made is that instead of using the word "dishonestly" you might qualify "advantage" by saying "obtained or offered an improper advantage." Would that make it better or worse?

  Mr Wardle: This is off the top of my head, but I think from the point of view of directing a jury, that probably would make it better, because you would say to the jury, "It is your decision whether that is improper", or "dishonest", or whichever word you use, but it is not something that I have really thought about with great care.

  Sir David Calvert-Smith: I think this is quite a difficult debate, because dishonesty as currently defined by the courts and explained to juries has a particular definition and "corruptly" likewise at the moment under the Act. Basically, not to be too technical about it, it is what a jury thinks is dishonest and what a jury thinks is corrupt, just as gross negligence in manslaughter is what a jury thinks is grossly negligent, using their own knowledge of the English language. It really depends what you mean when saying "Would it be better to put "dishonestly" in rather than "corrupt"?" because it is what the tribunal of fact actually decides in their own minds is either dishonest or corrupt. Like Robert, it is hard to imagine cases which we prosecute in which it could not be said that there was an element of dishonesty, but when one moves to the sort of behaviour which is probably better characterised as misuse of public office or some form of really outrageous behaviour as a public servant, then you are moving away from dishonesty into another kind of concept, some of which would be caught by this new Corruption Bill, I believe. So if the legislature decides it wants to include that sort of behaviour, I think dishonesty might limit the scope of the Bill beyond what was intended.

  Q67  Mr Stinchcombe: Why do you need a definition of "corruptly" at all in that case? Why can you not just put the word "corruptly" in in Clauses 1, 2 and 3 and whichever other offences you want to create, and leave it to the jury to decide?

  Sir David Calvert-Smith: That is what happens at the moment. Obviously you could, because we get on to some extent with the jury being told ""Corruptly" is an ordinary English word. Get on and decide the case."

  Q68  Chairman: There is a recent decision of the Judicial Committee which reaffirms the definition of "dishonestly"—I am sure you are very familiar with it. Does that cause difficulties in criminal law?

  Sir David Calvert-Smith: I do not believe that the Ghosh definition, which has been reaffirmed, that conduct is dishonest if the jury believes that it falls below the standards of honesty of a reasonable person and the defendant knew that it did so, is difficult at all. It is bound to lead to inconsistency, because one jury may take a different view of the same conduct from another, but that is a price that, I would have thought, is probably worth paying.

  Mr Wardle: I would certainly agree with that.

  Q69  Chairman: As a phrase to apply, it is not difficult, but people are being invited to form their own assessment of what society will tolerate. Does that work in the context of corruption?

  Sir David Calvert-Smith: I believe it would. You know it when you see it—corruption I mean.

  Q70  Chairman: Let us get away from "dishonesty" and "improper." Are there other definitions or aspects of the Bill which amount to definitions which you think are defective or that you would like to change, assuming we are going to have an overriding offence, not a specific, precise definition? Are there passages where you think "What on earth does that mean?"

  Sir David Calvert-Smith: We have made our position clear that we find the (A)s, (B)s and the (C)s in Clause 5 onwards quite difficult, or would expect juries to find them difficult, but I think I have made that point already.

  Q71  Chairman: Could you explain what you see as the difficulties there?

  Sir David Calvert-Smith: The difficulty seems to me to be that it focuses on the relationship between the agent and the principal and not on the relationship between the briber and the bribee. I just think that that would be a difficult concept for jurors. No doubt if it is well explained, they will get the point and there will not be a problem, but I just think that is more difficult to understand. There is one other aspect, which is Clause 7, where a private principal's consent means that there is no offence, which does not apply in the public sector, but, as the Bill makes clear, there are a number of people now who are both private and public, and I can see that there might be a difficulty as to whether you actually qualify for the Clause 7 or not because your functions may span both private and public at the same time, which is, as I understand it, one of the motivations for this new Bill.

  Q72  Lord Campbell-Savours: Can I take you back to what is a fairly elementary question really: how important is it, in your view, sitting there in the role you have, that a jury does fully and completely understand the nature of an offence that they are trying?

  Sir David Calvert-Smith: It is absolutely essential.

  Q73  Lord Campbell-Savours: So if it could be shown that they would not understand it, then the law, as far as you are concerned, is an ass. Is that correct?

  Sir David Calvert-Smith: That may be. It is undesirable.

  Q74  Lord Campbell-Savours: Would you go so far as to say that?

  Sir David Calvert-Smith: I do not believe that it would ever be beyond the wit of judges to take the Act, and reduce it to sentences which are clear and comprehensible, so that the jury are asked certain questions which they understand as to whether they are sure that X has been proved or Y has been proved, rather than giving them the unexpurgated text of the Act of Parliament, which is very rarely done because most Acts of Parliament are quite hard to follow for lay people. But if it were impossible, then obviously it would be a travesty, because you could never be sure that the right verdict had been entered.

  Q75  Lord Campbell-Savours: Are there conditions in which you think that the jury would not understand at all; the members of the jury would not understand the nature of the offence? If you think they might well be in that position, I think you should say so, because you have said that you think it is important that they do understand it.

  Sir David Calvert-Smith: I do not believe that it would be impossible, even though this Act is hard to follow on its face, for an individual case and its facts to be reduced to a series of quite simple questions. I do not think it would be impossible. What I have said is, if I were a member of the public and I wanted to know what the law of corruption was in my country, I would find it jolly difficult.

  Q76  Lord Campbell-Savours: I am sure there are some judges who are capable of explaining things very simply, but in your experience, are there judges who in these conditions may well not be able to explain it simply, in a way that jurors would understand?

  Sir David Calvert-Smith: The answer to that is undoubtedly, yes, but there is the Judicial Studies Board which produces good model directions, and hopefully if they are followed by recorders and crown court judges, they are comprehensible.

  Chairman: Judges in the lower courts sometimes say it is only when the House of Lords gets at it that it becomes confused.

  Q77  Mr Garnier: There is something in that, if I may say so. May I ask the Director whether he would agree that it is not essential that statute law should be complicated, and that it is preferable that it should be in plain English and easily understood, not just by lawyers but by lay people? Secondly, would you agree with me that it is not desirable that the Judicial Studies Board should have to produce a lengthy model summing-up which reinterprets a piece of legislation which ought to be readily understandable on its face, and that anybody, be they a lay magistrate—because this is an offence which will be triable either way—or a recorder, who may be a civil practitioner and not a specialist in the criminal law, or an experienced judge at the Old Bailey should be able, in very simple terms, without moving away from the essential points of the offence, to explain to a jury the essential ingredients that they must consider in order to find the case proved? I wonder whether your Department has produced or thought of, in addition to to the material which you have supplied to the Committee, a model Bill which would fit the purposes of the modern criminal jurisdiction.

  Sir David Calvert-Smith: The answer to all the questions I think you asked is yes, I agree; it should be simple if at all possible for everybody to understand it, and for any judge to be able, without recourse to assistance from the JSB, to sum a case up. On the other hand, simplifying it may well exclude conduct which Parliament feels should be punishable or include conduct which Parliament thinks should not be, and that, I suspect, is why we have got to where we are. Therefore, it is perhaps a bit presumptuous of a mere prosecutor to say "Don't pass a law because it is too difficult" if that means that the intention of Parliament is then thwarted. To your last question, historically—and I think this goes for Robert as well—we are not a Department which drafts legislation and we traditionally have not had the facility, nor indeed has anybody ever asked us to, so the answer is no, we have not come up with an alternative, because it would be wrong for us to usurp Parliament.

  Chairman: That is why I asked the question the other way, as to which of this you would like to change. You have something to work on.

  Q78  Mr Garnier: Sir David is not a mere prosecutor; he is the Director of Public Prosecutions, and I would have hoped that, as the Head of that Department, he might be able to assist us. I do not want to place you in an embarrassing position, but it just seems to me that if the Home Office has not asked you for your official view about how the law of corruption should be framed in order to make your life as the senior prosecutor of the state to be advanced, there is a lacuna which ought perhaps to be filled.

  Sir David Calvert-Smith: To be fair, of course we have been asked for our comments throughout the process on how the legislation would be drafted, and we have sent in comments from time to time, including, of course, the comments we have sent in to this Committee. I am not complaining about that in the slightest, but we are not policy makers; we are prosecutors.

  Q79  Chairman: Let us take it in very practical terms. Would you prefer to see the definition of corruption and other offences all spelt out very precisely in the Bill covering these different offences rather than to have the sort of rather global, general crime which is being attempted?

  Sir David Calvert-Smith: I think we were marginally in favour of the more global approach, absent the single fraud offence and the other offences proposed under that legislation, which we do not know yet whether they are going to be legislated.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 31 July 2003