Examination of Witnesses (Questions 60-79)|
QC AND MR
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
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
Q64 Lord Waddington: Did not the
Law Commission itself sayI am looking at paragraph 5.128that
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
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
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 itcorruption 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
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 magistratebecause
this is an offence which will be triable either wayor 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,
historicallyand I think this goes for Robert as wellwe
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
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.