Joint Committee on The Draft Corruption Bill Minutes of Evidence


Examination of Witnesses (Questions 446-459)

LORD FALCONER OF THOROTON QC, MR PAUL STEPHENSON AND MS MICHELLE DYSON

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 "corruptly" properly.

  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" at times.

  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 is.

  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 a judge.

  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 procedures?

  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.


 
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