Examination of Witness (Questions 348-359)|
2 JUNE 2003
Q348 Chairman: Professor, we are
very grateful to you for coming to help us in this inquiry. We
understand that there is a time limit because you have to catch
an aeroplane but thank you very much for coming. We understand
that you are the professor of criminal law at the University of
Basle and that you are chairman of the OECD Expert Group on Bribery
in Commercial Transactions. Obviously, we want to ask you quite
a bit about the OECD and some of the other international conventions
which we want to look at when examining the terms of this Bill.
We have had a bit of difficulty in getting some of our witnesses
perhaps to identify what exactly "corruptly" involves.
That is at the heart of this inquiry. We have been told by a famous
judge that any jury would know exactly what it means so you do
not need to define it. What do you consider to be the key ingredients,
the key aspects, of bribery or corruption offences? Is it simply
dishonesty, secrecy, or are there other factors that matter?
Professor Pieth: I would like
to thank you for this opportunity. It is well viewed by the OECD
that we have a chance to talk before the law is enacted in some
states. The question you are referring to is a very specific one
and, from my view, it only arises in the British context because
if one followed the wording of the Convention we use a different
word. We use "undue payment". The advantage of that
term is it is an objective term saying that this is not, for instance,
what people are entitled to receive like tax collectors will take
taxes or employees will receive a salary. Clearly, undue payment
means it is illegal from the beginning. Your concept of "corruptly"
puzzles us quite a bit. That is one of the difficulties we have.
I have understood "corruptly" to mean "intentional".
So far we have no problem but as far as you use the concept of
"corruptly" to take out other bits and pieces I think
it is rather vague. I am not an expert in common law. The role
we have in the OECD is quite a different one. We work under a
concept called functional equivalence which basically means you
do whatever you have to do under the obligations of the treaty
in your own legal spirit, with your own approaches. We just test
whether you meet the goal at the end.
Q349 Chairman: If one gets away from
the actual wording of the OECD Treaty and the other international
treaties, you ask yourself what is "corruptly"? What
does it involve? You said "intentionally" is one aspect
Professor Pieth: To go through
the concept that we are applying, we first of all consider bribery.
You know that we are just talking about the supply side of bribery
in the OECD; we are just talking about active bribing of a foreign,
public official. You have two parties, one who promises or pays
to someone else for an act or omission. The advantage that he
has to pay or deliver is an undue advantage. That is the qualifier
we use and require. You can do what you want with it but we will
certainly come back and ask questions if you write "corruptly"
into your law, because the concept of "corruptly" is,
for us, too vague. It gives you much too much leeway to throw
out cases we do not want you to throw out.
Q350 Chairman: It is important that
we have an idea of corruption. Otherwise, we cannot say whether
this Bill is achieving what we think it should be.
Professor Pieth: Yes. The point
is that somebody promises illegal payments. That is to say, payments
the recipient is not entitled to, for specific behaviour in his
profession, be it acting or omitting. We insist on that being
illegal. Otherwise, you capture perfectly legal activities and
that is one of the problems I have with your law. It is very broad
at the beginning. Clauses one and two capture next to everything
and then you have to, in six and seven, try to take bits and pieces
out of it which are absolutely normal behaviour. We would say
why do you not use the convention that says very clearly, in five
lines, what is to be forbidden. 34 countries in the world representing
all your competitors in the international terrain have simply
done that. They have just copied it. I have no quarrel with you
in using a different concept, an agent concept. That is up to
you, but we will test in the end whether we are convinced. The
burden of proof is on you. You prove to the OECD that you are
choosing an adequate manner to transpose what you have been signing
Q351 Chairman: As professor of criminal
law, in your concept of "corruptly", can you corrupt
or be corrupted or can you bribe or be bribed honestly? Does there
have to be an element of dishonesty in it?
Professor Pieth: We do not make
that distinction. We say if somebody meets the objective requirements
herepromises, paysto somebody who is a foreign,
public official with an undue advantage, we are not concerned
whether that is honest or dishonest. It is a speciality of British
law that you have a concept of dishonesty. Frankly, we are not
bothered. We want to see that you capture the cases that you have
signed up to. The Convention gives you the framework. We will
test you against the Convention. Frankly, you have fallen through
the exam once, in the first round. The second round you have slipped
through but you are trying to take away that legislation that
you passed and we are giving you, hopefully, a third chance. We
hope to reach a common result but the difficulty is that we are
getting a bit restless because we are asking ourselves what is
the reason that Britain, as one of the only countries, has such
difficulty with an issue that is so fundamental in international
business? Are you protecting your business for some reason?
Q352 Lord Waddington: One thing is
clear, is it not? That is that the idea of an undue advantage
is well established in a number of international conventions.
Is it right that you get this concept of an undue advantage both
in the OECD Convention, in the EU Convention and in the Council
of Europe Convention?
Professor Pieth: That is perfectly
right. Additionally you find it in one of your common law rules
in the reports. In the common law language in case law, you use
the word "undue". You do not use the word "advantage",
but something that amounts to the same thing.
Q353 Lord Waddington: Can I take
it a stage further? None of those conventions, the OECD Convention,
the EU Convention and the Council of Europe Convention, envisages
that it should be an offence merely to offer money to the agent
of a government or a public body. They all envisage that there
has to be something more. There has to be more than the offering
of money. There has to be the offering of money with some improper
motive in order to get an undue advantage. Is that correct?
Professor Pieth: It is. There
is an element already on the objective side that this person is
not entitled to the money because we want to exclude with the
word "undue" all the cases where somebody is allowed
to receive taxes or a salary. It is not only the subjective perspective
of doing something unduly or corruptly; on top of it, the money
is not due.
Q354 Lord Waddington: Do you not
therefore find it surprising that this Draft Corruption Bill seeks
to criminalise the payment of money to an official without any
guilty intent at all?
Professor Pieth: If I understand
the Bill rightly, in all fairness, one has to say it first defines
the crime very broadly. It has to specify later on in clauses
five and six and take out the cases that were not intended.
Q355 Lord Waddington: We have already
had, for instance, a witness with a very prominent firm of solicitors
in the City of London saying that this Bill would criminalise
the payment of a toll to an official collecting money at the entrance
to a toll road. There is nothing whatsoever, even if you look
in clauses six or seven, to suggest that it would not be criminal
for that agent of that public body to receive a payment. This
Bill is odd, is it not, in that it seeks to criminalise the payment
of money to an agent without any improper motive at all?
Professor Pieth: If what you say
were the case, we certainly would find it strange. I was trying
to give clauses six and seven, as far as possible, the benefit
of the doubt. I must admit that clauses six and seven are, for
me, unintelligible as a continental lawyer, but maybe your lawyers
can do better. I have the problem that our requirement is that
not only your lawyers and your jurors but your exporters understand
the law. Anything below that will not be accepted by the OECD.
Q356 Chairman: You emphasised earlier
the objective nature of this as far as your concept of corruption
is concerned. There has to be, has there not, a mental element?
Professor Pieth: The mental element
is the intent and even there it would be enough that somebody
is speculating with the idea that somebody could misunderstand
or understand the right way. The mental element is toned down
very much in our concept. We are concentrating on the objective
nature and you are perfectly right. You should not qualify perfectly
legitimate behaviour because then you are making what we are aiming
for ineffective. Our problem is not that you might be too broad.
Our problem is basically that, in this wording, it is very difficult
to understand and maybe even more so we are lacking one element
which does not come out very clearly. The one requirement we are
looking for is that it says the active bribery of a foreign, public
official is captured. We are reading that this is the case but
we had difficulties with the situation in 1906. We were not convinced
that this was really the case fully. We had questions to judges
and Members of Parliament. Now in the Anti-Terrorism Bill 2001,
I think we have the idea. You were more explicit there. You did
capture explicitly foreign, public officials. Here again, it is
so broad that it does not say anything. We will be puzzled and
we have doubts that your engineers, to take an example, know what
they have to do. That is the point where we are going to dig in.
Q357 Chairman: What you have said
raises two things. The first is that following on from the note
we had from the OECD secretariat they say that a statute which
is so broadly drafted and theoretical cannot or is unlikely to
achieve the objectives of the OECD Convention. How would we get
away from that objection on the part of the OECD?
Professor Pieth: We have two interests.
We have the interest that you, as fast as possible, fulfil the
requirements and we have the interest obviously that you fulfil
them fully. We have been asking for that in what we call phase
1bis, the document you have at your disposal. We will soon have
new legislation. There are two ways, basically. We have no quarrel
with the approaches you take because that is your own responsibility.
That is not our issue. You could save a lot of the situation if
you inserted one clause making it very clear that the foreign,
public officials are covered. Then I would only have about five
more difficulties. I have six major difficulties with your law
as it stands at the moment. That would be our three star deficiency,
which would mean that we would have to express in some diplomatic
language that we would have to re-examine you again under this
phase. This would be very difficult because your counterparts
in Nigeria and Kenya etc., are looking at this situation. You
can offload texts on the internet and they are reading that the
UK, next to Japan, has one of the only laws that flunked the exam
under phase one.
Q358 Chairman: Apart from the fact
that the Bill does not specifically refer to bribery of foreign,
public officials, why is this Bill so broadly drafted and theoretical
and therefore not one which practically can be enforced?
Professor Pieth: It appeared to
us when we read it that in clauses one and two near to everything
is captured and later on you have to take things away again. I
am taking a salary from the university. Is that corruption? I
think it is difficult if you bring that remotely into the area
of corruption. People are bound to misunderstand. There is a certain
hesitation from outside to come in and say, "Draft your laws
differently". I have with me this folder and all the other
countries have simply picked up in one way or the other the language
of the Convention. Take Australia, Canada and the US. The law
is a bit more complicated but most common law countries simply
replicate what you have in the Convention.
Q359 Lord Carlisle of Bucklow: Do
they all use the word "undue"?
Professor Pieth: Yes, mostly.