Examination of Witnesses (Questions 446-459)|
QC, MR PAUL
4 JUNE 2003
Q446 Chairman: Minister, thank you
very much for coming. We have realised already in this Committee
that there is a view that something has to be done with the law,
the definition of the law, and perhaps its application, and perhaps
that the existing statutory law and the common law as it stands
are not very satisfactory. The question, however, has been very
much raised as to whether the Law Commission 1998 report, which
I think you very largely followed in the draft Bill, is really
the right way to go about it. That is one of the things we are
looking at. As a preliminary matter, could you tell us whether
the Government did consider alternative options before following
the Law Commission's report?
Lord Falconer of Thoroton: We
did. There were a range of alternatives. You could have a Bill
without any definition of "corruption" or "corruptly"
in it at all and simply, as it were, leave it to the good sense
of the jurors or the common law to determine what "corruption"
meant. The difficulty with that would be you would end up with
potentially differing definitions of "corruptly" from
one case to another. We also took the view that if you did that
you would be dealing with a situation where unlike the phrase,
say, "dishonesty" there is not a popular view necessarily
of what "corruptly" means. We were not attracted by
the idea of having no definition of "corruptly". An
alternative approach is to take the approach in the South African
Bill. I am told it is not law yet in South Africa. What the South
African approach has been is effectively to create 23 different
sorts of offences of corruption, so it will be much, much more
specific. We thought the problem in relation to that was if we
were too specific we might catch things we would not necessarily
as a matter of policy want to catch and you were not be leaving
it enough to the jury to decide what the right solution was. Yes,
the answer is we did consider other solutions, and the range is
really from having a Bill but no definition of "corruption",
to having something pretty precise like you have got in the South
African Bill, and we have gone for a middle course which we think
embraces both simplicity but also clarity and codification.
Q447 Chairman: We have had quite
a lot of opinions expressed to us that probably it would be easier
for jurors and perhaps more clear to people who might be committing
a corruption offence if we did have some specific offences. It
was suggested to us that if you wanted to make sure that the wrong
thing is not included that you could do that either by way of
exceptions or a very narrow definition.
Lord Falconer of Thoroton: I do
not know if you have had a chance to read the memorandum that
I recently put in.
Q448 Chairman: Yes, I have seen that.
Lord Falconer of Thoroton: It
is a very truncated way of doing it but in the annex it is broadly
seeking to define the sorts of questions the jury would have to
answer if our definition in the Bill was followed. We think it
has got the merit of simplicity, although if one looked at it
initially one would see it has got quite a number of clauses to
it but it is clear enough, we think, for a judge to direct a jury
in such a way that the jury would be well able to understand what
the question was. We also think that it catches the essence of
what, as a matter of policy, the definition of "corruption"
would be. I should make it clear that if it can be done in a better
way, one of the purposes of pre-legislative scrutiny is to hear
whether there are better ways of doing it and we are completely
open-minded if there is a better way of doing it. At the moment
we are not particularly attracted to the South African approach
which does involve myriad offences which we think is too complicated
because one of the aspects of this, we think, which is quite important
is not just what goes on in court, which is very, very important,
but the ability to be able to identify, whether you are in the
public service or whether you are in private enterprise, what
is corrupt and what is not. You cannot provide a complete definition
but if you went down the South African model, how complicated
would the guidance from the local authority or head office be?
We think pretty complicated.
Q449 Chairman: A number of witnesses
have said to us that they find the definition in clause 5 very,
very difficult and they think it would not be easy for a jury
to follow clearly. I note in your memorandum you say that the
jurors may find the language at first sight rather complex but
the judge should be able to give sufficient direction to make
it all right.
Lord Falconer of Thoroton: I know
you have read it but if you take, in the annex, the public sector
examples: Jones is the briber who is trying to get a licence,
did Jones offer Peterson, who is a local authority official in
charge of licensing, unlimited free drinks from Jones' pub once
opened, Jones trying to get a licence, and did Jones believe that
if Peterson granted the licence it would have been primarily in
return for the free drinks? That is the distillation of the clause.
Can we put it more clearly? We would welcome more suggestions
in that respect. I do not think the way the questions are defined,
which is how we would hope a judge would define them for a jury,
cause difficulty in comprehension and understanding.
Q450 Chairman: It is not just for
the judge and jury, it is also for the lawyer and his client.
If the client says to the lawyer, "Is this something I can
properly accept by way of commission or whatever", it is
suggested that perhaps it is not going to be very easy to apply
the definition as it is at the moment. In view of what you have
said we will consider it in the light of all of the evidence.
Lord Falconer of Thoroton: I apologise
for interrupting but I hope I am making it clear that we do take
the view, and I think you agree but I am not sure, there should
be some definition, there should not just be a gap left for, as
it were, treat "corruptly" as an English word and let
the jury decide. We think there should be some definition.
Q451 Chairman: Have juries in the
past found "corruptly" a difficult concept?
Lord Falconer of Thoroton: I have
asked about that. What we have had is a variety of definitions
given by courts. I have not got statistics, I have not been able
to get them, as to whether or not there have been, as it were,
acquittals when there should have been convictions. I cannot identify
for you cases where the facts are broadly agreed and yet what
a reasonable man would think was an odd verdict reached, or the
other way around. I cannot say I have got any evidence which says
juries have had difficulty with the word "corruptly".
There must be some support for the view that it is difficult if
judges over the last 112 years, running from 1889, have been taking
a whole series of approaches to the word "corruptly".
You might not think that judges necessarily represent the views
of jurors but if they define it differently on different occasions
that suggests there is some difficulty.
Q452 Chairman: It may be difficult
to get uniformity of judicial definition but I thought the practice
was in a High Court the chief justice would give working directions
and that should ensure consistency. What would be interesting
for us is to know whether or not you or your officials have any
real body of evidence to show that prosecutions have failed where
they ought to have succeeded because the jury had not got over
Lord Falconer of Thoroton: I cannot
identify any such cases and I have asked. I will ask again.
Q453 Chairman: Is there a feeling
that this is going wrong because of the lack of
Lord Falconer of Thoroton: What
I have picked up in the work that has been done is that there
is a feeling that "corruption" has a movable meaning,
it is not easy to get hold of, the courts have taken differing
views over the years as to what it means. Before the Harvey
case there were two conflicting definitions in play. I am told
that business to some extent is keen to see it codified because
they too have been uncertain about what is meant by "corruptly".
I cannot identify for you individual cases, nor have I got any
statistical evidence I can put before you.
Q454 Chairman: With this sort of
wording all sorts of directions have different shades and different
meanings, it is like "honestly" and "dishonestly"
Lord Falconer of Thoroton: You
mean the definition in our Bill? We have tried to keep it tight
and there is obviously room for judgments to be made, for example,
as to what is meant by "primarily", which is one of
the important aspects in the definition. Again, we think there
is no formulation that you could have that did not, and in my
view rightly, leave it to the jury to make fundamental decisions
about what was going through the mind of the defendant.
Q455 Chairman: So you support the
idea, do you, that outside this Act it is probably alright for
the judge to say "You all know it is a common word and you
can apply it as you like" but inside the Act we should have
a definition of "corruptly"?
Lord Falconer of Thoroton: The
reason why I am not attracted by the idea of saying "Corruptly,
we leave it to you to make up your own mind, members of the jury"
is because that has led to people trying to define it and it has
led to conflicting definitions. Therefore, I think we do need
to go some way to try to pick up what the essence of corruption
Q456 Lord Campbell-Savours: Can I
just take you back a step. The other Bill going through the Commons,
the Criminal Justice Bill, provides for a trial effectively by
Lord Falconer of Thoroton: In
serious fraud cases and in cases where the jury has been intimidated,
or there is a risk or a fear that the jury may be intimidated,
or where the defendant himself elects for trial by judge alone.
Q457 Lord Campbell-Savours: Is it
possible that these kinds of cases may well be tried under those
Lord Falconer of Thoroton: It
is possible for a defendant in these cases to elect for trial
by judge alone. I do not think they would fall within the serious
fraud ambit. I assume it is possible that there could be intimidation.
I do not know but there is no limitation on the intimidation provisions
in the Criminal Justice Bill, so it is possible that a corruption
case could be, in theory, tried by a judge alone because of intimidation.
Q458 Lord Campbell-Savours: But is
it not distinctly probable that most of these cases will be tried
under that arrangement?
Lord Falconer of Thoroton: No,
I would have thought only a handful would be affected by intimidation.
I cannot tell you the extent to which judge alone would be the
election of a defendant in a corruption trial.
Q459 Lord Campbell-Savours: They
are the only circumstances in which that would arise?
Lord Falconer of Thoroton: Yes.
Lord Campbell-Savours: I am not a lawyer.