Examination of Witnesses (Questions 120-129)|
QC AND MR
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
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
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
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? 
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.