Joint Committee on The Draft Corruption Bill Minutes of Evidence


Examination of Witnesses (Questions 120-129)

SIR DAVID CALVERT-SMITH QC AND MR ROBERT WARDLE

14 MARCH 2003

  Q120  Mr MacDougall: You made a point about the Members of Parliament situation. I want to talk about the corruption itself in terms of industry and business and commerce. You know yourself that within America and within Europe the payment of facilities is widely accepted. It is seen as a level at which you can actually pay money to the company for someone who is promoting a product and that is quite acceptable, whereas the International Development Committee rejected that prospect. Do you think that having that kind of level playing surface and that opportunity to say, "This is acceptable; this is not corrupt; this is something that is a means of development" weighs against the fact that this could be seen as some form of corruption? We are not asking the same point. How do you determine what is corrupt and what is not corrupt? Does there not have to be some measurement somewhere weighed against intent and purpose?

  Mr Wardle: I think obtaining a level playing field within different countries is always going to be extremely hard to achieve. I think it is quite hard enough doing it within one jurisdiction because you have different interpretations, different views by jurors, as one has now with offences of dishonesty. There has been some work, certainly in the European Union, and I understand elsewhere, to try and level the playing field to some extent but I think we are always going to be in that difficulty. It is not only the level playing field but from our point of view it can make it very difficult obtaining evidence because if you go to these places, you send a letter of request, you describe conduct, and they will come back and say, "Sorry, what is wrong with that? That is not an offence over here". That is always going to be a restraint on the practicalities of us following up some of the cases, the investigations, which we would otherwise like to prosecute. I would agree with you on that.

  Sir David Calvert-Smith: Could I say that this is a problem with which I wrestle on the international scene. I am a member of the Committee of the International Association of Prosecutors. Trying to reconcile different standards that various countries have as to what is and is not acceptable in business is virtually impossible. What I am sure of is that there is a body, of which we are a member, which has pretty high standards and feels sometimes unfairly prejudiced by the fact that some other countries do not apply the same standards and therefore may get unfair commercial advantages from time to time. Clearly, those facts would affect a decision as to whether something would be prosecuted or whether it would not in the public interest. But I would hope that we would be trying to make the world a less corrupt place generally, rather than simply descending to the standards of the lowest common denominator.

  Q121  Chairman: It is interesting you talk about the International Committee. Looking around, if you could take lock, stock and barrel the corruption legislation of some other state, which would you take?

  Sir David Calvert-Smith: I think the best I have seen, and I cannot say I have seen them all —

  Q122  Chairman: Some of them do not have any?

  Sir David Calvert-Smith: Exactly. I think the South African code, which is of quite recent origin, is certainly worth a look. I think many of the other Commonwealth countries have remained with our Anti-Corruption Acts.

  Mr Wardle: I think it is difficult to compare it because you also have to look at the different ways they obtain evidence, the different ways they prove cases in court. It can be a little bit misleading. I think there should be a word of caution about comparing different codes?

  Q123  Chairman: Of course we also now have to take into account the Human Rights Act and putting the burden of proof upon the defendant. Are you happy with the notion of evidentiary proof of burden on a defendant is not in violation of the Act? Does that create any problems here, that you cannot put the substantive burden on the defendant, or you may not be able to?

  Mr Wardle: I think in practice no. I think that bringing the two elements, the public and the private sector, together and removing presumption in practice would make very little difference. You would still actually have to obtain the evidence; you would have to show the commercial activity which underlies it. I think that, plus the secrecy of hiding that, is usually enough for a jury.

  Chairman: Just moving on to something else, the suggestion has been made that perhaps one or two other offences of a specific kind could be and would be included in this Bill.

  Q124  Dr Turner: Those holding public office currently are only prosecuted under common law. Do you think there would be any advantage, and what would you have to do, in making misconduct in public office a workable statutory offence in this Bill? Do you think it would be helpful?

  Sir David Calvert-Smith: I think it might very well be very helpful. I would have thought it would not be impossible. It would not have all the difficulties and complications surrounding the agent/principal relationship which I think makes this Bill so hard, but it might delay the implementation to go back.

  Q125  Dr Turner: That is not our problem. Another thing that is missing from this Bill is trading in influence by officials. How would you think that could be made workable?

  Sir David Calvert-Smith: It is a difficult concept for me as a prosecutor. Maybe Robert has a better steer on this. My understanding is that, looking at some of the continental legislation on trading in influence, it would actually be caught, the behaviour that they are attempting to criminalise would be covered almost certainly by the current provisions of the draft Bill.

  Q126  Mr Stinchcombe: Is it corruption working to an advantage?

  Sir David Calvert-Smith: I have just said so. I am not so concerned about that. For simplicity, I can see great advantage for public servants in having a misconduct offence which was statutory rather than dredged up from the Middle Ages.

  Q127  Chairman: Are these two offences included in the South Africa Act?

  Sir David Calvert-Smith: I am sorry, my Lord, I do not know. I cannot remember offhand.

  Q128  Chairman: Perhaps you could very briefly indicate why you think the South Africa Act has features which attract you?

  Sir David Calvert-Smith: Could I perhaps come back on this when I have it in front of me, which I am afraid I have not. All I can remember is that at the last but one meeting I remember reading it and thinking, before this was even a draft Bill, that that might be a good model. Perhaps I could send it to the Committee with some comments? [2]

  Chairman: That would be very helpful. Perhaps you could let us have a short note saying the reasons for the South Africa Act being attractive and useful. Are there any other offences which members of the Committee feel could be expressly included in the present Bill? These seem to be the two main ones. In view of the need to rise at 4 o'clock, would you like to give an example of Parliamentary corruption? I think we have dealt with most Parliamentary questions at this stage. The role of the Serious Fraud Office is perhaps something we might just look at in relation to corruption.

  Baroness Whitaker: I think I asked quite a lot of that when I asked Mr Wardle if he would give consent. I just wondered if he could have a word about the agent/principal business because I do not think we have covered that. It seems to me that there are three victims.

  Chairman: I think we have reached another division. Is this a question which can be answered shortly now? If not, I think perhaps we should do it in writing.

  Q129  Baroness Whitaker: That one cannot be answered shortly but the one that can is about the use of the approved code of practice, questions like facilitation payments or thresholds or areas where good practice can be defined but not go in the Act. Do you think there is any scope for an Approved Code of Practice which would have statutory status?

  Mr Wardle: I expect there is. I think many organisations will have their own codes of practice and the only sort of guidance like "this is the minimum level" might be quite helpful but, at the end of the day, the one thing you are saying is, "Do not lie about it. Do not make it secret. Do not take secret payments". I am afraid codes of practice may only say "do not do that".

  Baroness Whitaker: I meant one which would be used in a court as prima facie evidence that if you breached—

  Chairman: I am sorry, I am afraid we are going to have to stop. You have Baroness Whitaker's first question. I wonder whether perhaps you could consider that. It will be on the record. Perhaps you would be kind enough to let us have a note in writing as to what you think, in view of the fact there is another division, and we have finished.

  Lord Campbell-Savours: Perhaps we could also have it in a non-quorate session as an informal answer as well, so that we have it both ways?

  Chairman: Thank you very much, Sir David and Mr Wardle, for coming. We are extremely grateful to you. Do not be surprised if, having heard one or two others on this issue along the line, we come back to you with some written questions. We are very grateful to you.





2   Note by witness: The comments I made in respect of the South African legislation were based on my understanding of the 1992 South African statute on corruption which accords with my view that a more global approach is preferable to setting out specific offences. I was unaware at the time I gave my evidence that this statute had been superseded. I apologise for any misleading impression I may have caused.

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