Joint Committee on The Draft Corruption Bill Minutes of Evidence


Examination of Witness (Questions 380-399)

PROFESSOR MARK PIETH

2 JUNE 2003

  Q380  Lord Carlisle of Bucklow: This Bill is based very much on an agent and principal basis. Do you see any advantage in that at all?

  Professor Pieth: I like the idea generally as an abstract concept. That is where the dishonesty comes in. Somebody goes against his duties towards his principal and I would be interested in that, as far as my abstract need as a professor, in understanding the general notion of corruption. As a legal concept, to apply it in concrete cases, I have my doubts whether the analogy that you might have from the private sector really is applicable in the public sector. You will see that in some clauses you have to take back again what you are saying. You are giving an exception but saying this exception does not apply to the public sector. The reason is that this agent/principal idea cannot be fully applied throughout. This is up to you. If you like this notion, I will not quarrel with you. This is your domestic prerogative. I would find easier solutions preferable.

  Q381  Chairman: I would like to go back to your secretariat's submission which says, "As a definition of the core mens rea element of the offence, clause 5(1) is obscure, circular and unsatisfactory. It would be preferable to devise an affirmative definition of `corrupt' or `corruptly' using language drawn from existing common law cases and statutes . . ." That is the first suggestion. ". . . or by using the word `undue' as it is used in your Convention." I am not sure whether "unduly" in English has the same meaning in French. There is an element of legality, as I understand it. "Unduly" does not necessarily import the concept of illegality. What do you mean by "unduly"?

  Professor Pieth: You could translate "unduly" by "not legally foreseen".

  Q382  Chairman: It has a purely legal connotation but "unduly" in English does not necessarily have legal connotations.

  Professor Pieth: It has a moral connotation, I accept. I think, in the way it is translated in the continental European context, "unduly" means there is no legal entitlement. That is why I am insisting that on an objective basis you have to be very clear and then it can be simpler in developing the mens rea.

  Q383  Chairman: If you told a jury, "You can do this unless you do it unduly" they would not be very clear as to what was meant by that. We have somehow to spell out "unduly" if we follow your suggestion. What about the other idea that you could devise a positive and affirmative definition of "corrupt" or "corruptly"? They do not go on to spell that out in the document.

  Professor Pieth: My secretariat is independent. I did not advise them what to write there.

  Q384  Chairman: I am not asking you to defend it; I am just asking you to comment on it.

  Professor Pieth: I would prefer to simply eliminate the concept of "corruptly" here because it is causing trouble. It is very difficult to define it in positive terms. My suggestion would be to use something like "not legally foreseen". I would work from the concept of "undue" and translate that into straightforward, ordinary language.

  Q385  Chairman: Not legally foreseen or not legally permissible?

  Professor Pieth: It is more than that. There is no entitlement. There should not be an entitlement. We have a problem if an official takes money to which he has no title.

  Q386  Mr Stinchcombe: Knowingly to confer advantage to which he had no legal entitlement?

  Professor Pieth: That is right.

  Q387  Lord Waddington: I thought we had more or less agreed that there may be some difficulties in explaining to a jury precisely what "undue" means, but we are agreed, are we not, that this offence of corruption must involve some improper motive? There must be either dishonesty or lack of integrity or breach of duty. Something improper has to surround this transaction, has it not?

  Professor Pieth: By definition it is improper to knowingly promise money to someone who has no title to it in order to influence him to conduct his business. There is no need to say "improper" additionally because it is improper by definition to intentionally confer an advantage that he has no title to.

  Q388  Lord Waddington: There has to be something to prevent somebody being called a criminal for the mere payment of money without any improper motive at all. I have mentioned often in this Committee that, at the moment, the Bill is so broadly framed I would be a criminal if I were to pay money to a baggage handler at Heathrow to get him to hurry up and extract my baggage from the mass of other baggage. That must be wrong, must it not, if your legislation is so widely drawn it stigmatises as criminal acts which no reasonable person would consider criminal?

  Professor Pieth: Let me give you two answers. The OECD's position is that we are asking you to deal with so-called genuine, straightforward grand corruption. We are not dealing with small facilitation payments that are sometimes necessary to move around or to get a telephone installed. We are under heavy criticism worldwide for this. The reason why we are doing that is because we have a kind of long arm jurisdiction situation here. You are in a way tidying up situations in Kazakhstan from here which is very difficult and is only going to work in very major cases. If we have to envisage a case run in Britain on ten pounds that have been given to a baggage collector at an airport somewhere in Kazakhstan, that would not be practicable. For that reason, we have said we are not dealing with that.

  Q389  Chairman: How do you set the limit? If you are going to do it by law rather than practice and not prosecute, how do you set the limit for these facilitation payments?

  Professor Pieth: Different countries have chosen different solutions. For instance, the German speaking world on the continent have been saying payments for an act that is impermissible, going against the law, are covered. That can be a small payment. If a policeman does not give you a fine because you have given him ten pounds, that is a clear case of corruption. That is one approach, that you say it was in furtherance of an illegal act. The other approach would be the one the Americans and the Canadians have chosen. You have an explicit, affirmative exception saying small payments for routine government transactions—that is the wording they use—are not acceptable but are not criminalised. We are not saying that is allowed. We are not saying it is good because we would get into serious trouble in Pakistan, India and other places. People are suffering from that behaviour being multiplied, and that causes a problem but it is not something we can tidy up from here.

  Q390  Chairman: Do you not give a guidance or definition as to what is meant by "small"?

  Professor Pieth: No. There are guidances given in some countries. Around $500 has been one such approach. Other countries do not have a distinction. France, for instance, has no distinction as to the current UK law but what you certainly do in France and in the UK at the moment is that, in procedural terms, you would filter cases. You are not forced to take up every case. The prosecutorial discretion would take care of that situation. In France you have an informal threshold. I do not know what it is.

  Q391  Vera Baird: I wanted to go back to the attempt to define the act. Looking at Article I in the OECD Convention, there is a problem for us in the notion of "undue" which does not mean illegal. It has two quite separate meanings apart from slightly improper. It means not timely. It means not due now but perhaps due later, like a bus coming. It also has an element that there may be an advantage which is due but this is too big an advantage. There is a quantitative element too and I do not think it therefore does encapsulate it. If one looked at Article I and just replaced the word "undue" with "to which he had no legal entitlement" it would say that it would be an offence for a person intentionally to offer, promise or give any advantage to which the recipient had no legal entitlement in order that the official refrain or act. That would sum it up, would it not? Would that be sufficient?

  Professor Pieth: Yes.

  Vera Baird: From our point of view, would not intentionally giving something to which there was no legal entitlement in order that someone refrain or perform something outside their official duties be sufficient to define "corruption"?

  Chairman: Would you see that as covering tips given after the event or only tips given before the event?

  Q392  Mr Garnier: Or anticipatory tips?

  Professor Pieth: It is basically aiming at the situation where you are trying to influence someone. It covers payments before. I think your Bill is also covering gratuities, payments afterwards. That is not something we would require in the context of transnational bribery. You are doing that for different purposes to cover the Council of Europe's Convention or for domestic purposes. That is not something we would insist on.

  Q393  Mr Garnier: My question deals with the undue pecuniary or other advantage in Article I. I am not a criminal lawyer but I wonder whether we get any assistance from our own Theft Act of 1968 where we have a collection of offences broadly dealing with the obtaining of pecuniary advantage, either by deception or by some other form of dishonesty. I do not know whether that is something that in our jurisdiction we could usefully import into your criticisms to produce a better answer to the problem of "undue advantage" or payment.

  Professor Pieth: Not being a specialist in your Theft Act, what seems to be the problem is that we are quite broad by saying that there is no legal entitlement. We are not saying it is forbidden to take that; it is simply not something that you have a right to take, which captures many more cases.

  Mr Garnier: The easy circumstances are the obvious bribe of paying somebody $1 million to do something and giving a waiter a five euro tip for bringing your coffee rather more quickly than the next table's. The difficulty is going to come in that grey area, the margin, whether the tip moves from being a gratuity to becoming a corrupt payment. What we must try to do presumably in drafting our statute is to make that grey area rather less grey so that the lawyer, the businessman, the public official in Egypt—

  Chairman: If you give somebody £5 to carry your bag which he is not legally entitled to, it does not necessarily make it corrupt, whether you give it before or afterwards, does it?

  Mr Garnier: Equally, if we make you late for your aeroplane this evening, if you tell the taxi man, "I will pay you twice what is on the metre if you get me there in time", you are encouraging him to break the speed limit.

  Q394  Chairman: Take the £5 tip and the extra tip to make someone go faster than the law allows. Are they in a different category?

  Professor Pieth: The answer goes back to the system we have in our own country where we introduced the provision that you are encouraging him to break the law. If my inducement to the taxi driver would result in him breaking the law by speeding, then I would be in effect and if you were a public official that is another additional requirement you would have.

  Q395  Lord Campbell-Savours: That was the reference to "in furtherance of another illegal act"?

  Professor Pieth: Yes.

  Q396  Lord Campbell-Savours: Where is that applied? You have talked about different countries. What about France?

  Professor Pieth: There would be the German solution. The Swiss solution uses that wording—the German speaking world generally. Other countries have a more extensive notion of "undue". They would try to capture these cases that we do not want to capture with the word "undue".

  Q397  Mr Stinchcombe: I wonder whether there might be a difficulty with just focusing on the legal entitlement aspect. Would it not be possible for people to enter into all sorts of collateral contracts so that there is an entitlement to receive money under those contracts and they say that they are legitimately entered into when in fact they are used as a guise simply to exert undue influence? I wonder whether, in order to meet the points made by my colleagues about improper motive, it is not necessary for us to put something in about the intention wrongly to influence someone. That does seem to me to be the essence of the advice we are targeting.

  Professor Pieth: My quarrel is not with your approach generally, if your general approach is to have that kind of qualifier. The difficulty is what does this actually mean. Can you make sure that it is not broader than what other countries are doing? We have so far not seen a very straightforward definition of what it really means. We have insecure ways where the clause tried to say what corrupt conduct is. The meaning of corrupt conduct has left a lot of questions open.

  Q398  Mr Stinchcombe: What about the point on legal entitlement? Is there not a danger that people will simply enter into collateral contracts ostensibly offering perfectly legal services and that be used as a fiction in order to colour what would otherwise be a corrupt relationship?

  Professor Pieth: A situation I have known from France is that frequently public officials are offering to write an expert opinion and the value of the expert opinion is 5,000 but they are receiving 100,000 for it. That is a typical way of bribing. That is the kind of thing you would do if you wanted to camouflage something.

  Q399  Mr Garnier: That is a matter of evidence rather than legal definition.

  Professor Pieth: Yes. Of course there are ways of trying to go round it. The difficulty there is that a public official in most systems would have to explain why they were giving expert opinions and things like that outside their job. If they enter into all sorts of agreements, there is a need to explain why they are doing this.


 
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