Examination of Witness (Questions 560-579)|
4 JUNE 2003
Q560 Lord Campbell-Savours: The Health
Select Committee in the House of Commons.
Lord Goldsmith: I cannot tell
whether we are thinking of the same case. I am aware of a case
where an issue has arisen about whether or not it is possible
in a criminal prosecution to rely upon something that was said
by a non parliamentarian to a select committee. Have I got the
Q561 Lord Campbell-Savours: Yes.
Lord Goldsmith: But that is a
circumstance in which it is the fact that that person said it
which is relevant to whether or not the company with which that
person is connected is guilty of a criminal offence.
Q562 Mr McDougall: On clause 12 as
well could I quote you the Clerk of the House when he made mention
of the fact that the fundamental requirement for a successful
prosecution of the proposed new criminal offence of corruption
will be clear evidence of the existence of a corrupt bargain and
that clause 12 will not materially assist the prosecution in meeting
that requirement. Three brief questions. First of all, is clause
12 as it stands really necessary?
Lord Goldsmith: I think there
could be cases where without clause 12 it would not be possible
to bring a prosecution because evidence of a key ingredient of
the offence would not otherwise be available, so my answer must
be yes, it is necessary.
Q563 Chairman: Have there been any
recent cases of that kind as far as you are aware, without giving
us names or details?
Lord Goldsmith: No, there is the
case to which Lord Campbell-Savours is referring which is not
quite the same where there may be some implications from the unavailability.
Q564 Mr McDougall: Have you known
of any examples at all of circumstances where a Member had been
involved in corruption but the only evidence available to prosecute
him or her came from parliamentary proceedings?
Lord Goldsmith: If the circumstances
were that all that one knew was that the allegation was of a statement
which was made in Parliament which was thought to have been made
as a result of corrupt inducement, as the law stands at the moment
one simply would not go any further to investigate it because
the fundamental aspect of it would not be provable in court because
of Article 9. The answer is I do not know of any such cases but
I am not sure that demonstrates that there might not have been
Q565 Mr McDougall: Has there been
any narrowing down confining clause 12 to, for example, cases
where Members have been bribed, to make it much more specific?
Would there be any advantage in doing that?
Lord Goldsmith: I think the disadvantage
of doing so, if I may say soand these are policy questions
rather than questions as to what one wants to coveris it
would cut out, for example, the case of the corrupt so-called
expert witness giving evidence to a select committee because one
could not then get that material in, and I would have thought
that one would in principle want to be able to catch that sort
of conduct because giving corrupt, false evidence to a parliamentary
committee seems to me to be a very grave thing to do.
Q566 Mr Shepherd: I was very impressed
with your ringing endorsement of the Bill of Rights and that you
expected a Member of Parliament to speak freely, honestly, according
to belief, et cetera, but of course much of parliamentary life
is dependent upon a system of deals and bargains and agreements
as part of the oil that enables it to function. It has been put
by one of the Clerks in a paper to us, and I will take a big example,
a government which is a minority government is returned and it
has to enter into a coalition. In order to do that there is a
conflict naturally of what a number of Members of Parliament who
might form this government believe in honestly, passionately,
etcetera. The inducement is that they become part of the government
of the country orand I say this with diffidenceone
of them may be offered Bermuda in return for voting in a certain
way. As the Bill is drafted now that seems to have all your agents
A, B and C performing and acting. Does it not meet the way corruption
is established in this Bill? Would it not be a corrupt pact?
Lord Goldsmith: I need to think
a little bit further about the detail of how the Act operates
but it does occur to me to say that I had understood not that
the example you have given was the reason for it but that circumstances
which related to the way that Parliament operates were one of
the reasons that the Joint Committee on Parliamentary Privilege
thought that some sort of filter was appropriate, a filter which
had some understanding of the way that Parliament operated and
could therefore perhaps distinguish.
Q567 Mr Shepherd: It is just I am
seeking clarification on this because it goes right through the
parliamentary processes, as you know perfectly well. In inducing
people to vote for something, sometimes offers are made by those
in a position to make offers. I am not saying it is the biggest
and single most important issue but it is important. It is now
mooted that we should have a European prosecutor. What would his
role be in this? Does that do away with you as a filter?
Lord Goldsmith: I am firmly against
the European public prosecutor and that is one of the reasons
for it because I think it is very desirable that our Prosecution
Service ultimately has an accountability to Parliament through
the Attorney General. I think that having a European public prosecutor
which side-stepped that would give rise to a lack of accountability
and disruption of the system that we have, with disadvantage.
That is one of the reasons I am against that.
Q568 Mr Shepherd: It would undoubtedly
have an effect if it comes in. If the government comes in it may
change its mind. I accept it is a draft proposal as well but surely
this intervenes directly in the operation of the British judicial
process (because many of the transactions in this Bill are trans-national
that you are trying to strike at) and that would give them a direct
role in the British judicial process, would it not?
Lord Goldsmith: If I can, I will
focus on this particular Bill. That depends in what form it is
retained. If, for example, the Act requires that before certain
prosecutions could be brought by Act of Parliament there be consent
from whether it is the Attorney General or anyone else, that would
remain a condition of the offence. Whether or not there was a
European public prosecutor whose job it was to look at intra-Community
Q569 Chairman: Many of the sort events
we have been considering in the corruption context would not appear
to fall within the proposal of a European prosecutor. Could we
stick with clause 12 for the moment. The question has been raised
as to whether it is right to limit clause 12 to corruption. There
are other offences which perhaps should also fall within the same
heading, fraud for example you mention. Do you have a view as
to whether we should extend this removal of the privilege to cover
fraud as well as corruption?
Lord Goldsmith: To do so would
from a prosecutor's point of view, from my point of view as prosecutor,
be helpful because it could mean that evidence which was relevant
to prosecuting a particular offence would be available when at
the moment it is not. But I think one would have to balance that
as a policy matter against how far one wanted to make incursions
into the privilege, and I think broadly there is a balance that
one has to strike on the one hand between leaving the fundamentals
of freedom for parliamentarians to speak intact whilst making
necessary incursions into that which are consistent with that
freedom of speech, and I have suggested that actually having sanctions
against Members who spoke for corrupt purposes, if such a thing
were ever to happen, enhances the quality and the nature of freedom
of speech in Parliament.
Chairman: You would like to follow this
Q570 Mr Stinchcombe: Just one very
short question. You have suggested that clause 12 would be necessary
in order to prosecute, for example, a Member of Parliament who
took a payment in order to vote in a particular way. However,
on my reading of the relevant clauses you would not have to prove
that the Member of Parliament voted in order for the offence of
corruptly obtaining an advantage to be made out and neither would
you have to prove that he had voted in order for the briber to
be convicted of the offence of corruptly procuring an advantage.
Lord Goldsmith: I think there
are two answers there. You might not have to if there is a case
where you were alleging it happened in advance, but in practical
terms if you could not actually put before the jury what happened,
the prospect of getting a conviction could be significantly weakened
and up in the air, so what happens about this. You are saying
he patently denies he was paid. He says that anything he received
was a contribution towards this or that or the other. As a prosecutor
you want to tie that into what actually happened. The second answer
is that the Bill also covers those circumstances where something
has been done in advance in expectation of something happening
afterwards and then it would be rather more necessary to demonstrate
that the step had been taken. I am thinking of 5(2), if I have
got this right.
Chairman: You mentioned your role, let's
just have a look penultimately at that. What is the role of the
Lord Waddington: If the consent to prosecutions
for corruption were vested in the DPP instead of the Attorney
General, which has been suggested by some people, the argument
against it was that the responsibility of the DPP could be delegated
right down the chain until in fact some people might think it
was not an appropriate filter at all. Is there some sort of halfway
house whereby if the consent was vested in the DPP it would be
possible to ensure that that consent was given at the highest
Q571 Chairman: Can I just add a rider
to that. One of the suggestions was that it should be the Crown
Prosecution Service which would have the right to look at this
and decide. I think if it is made the Director personally that
is one thing, if it is the Crown Prosecution Service then there
is really quite a serious problem that arises. Do you have a view
Lord Goldsmith: Certainly. Lord
Waddington is of course right that at the moment, and there are
many examples of DPP consents, as there are many examples of Attorney
General consent, a DPP consent can be exercised by any prosecutor
because there is a delegation down. It would be perfectly possible
to provide in certain offences that the consent should not be
exercised below a particular level of lawyer and indeed as internal
matters of management of course the Crown Prosecution Service
does do that, and certain very serious matters will not be determined
at a lower level. I would be concerned about something that required
the DPP personally to consent because then there would be questions
of demand on hisand we have to appoint a successor or perhaps
Q572 Baroness Whitaker: How about
if the Director of the Serious Fraud Office who had the consent
rather than the DPP, again at the appropriate level?
Lord Goldsmith: There will be
some corruption cases which will fall within what the Serious
Fraud Office does, certainly.
Q573 Baroness Whitaker: Exactly.
Lord Goldsmith: There will be
others that do not.
Q574 Baroness Whitaker: If his mandate
were enlarged to make it appropriate for the whole of the scope
of the Bill?
Lord Goldsmith: I would have some
questions about that. The Serious Fraud Office is a very important
and skilled organisation dealing with complex and serious fraud
which often does involve corruption, these two things do quite
frequently go together, but I would have some questions about
whether or not the office should be involved, for example, in
the sort of I do not know how to describe this, pedestrian corruption
which does take place, somebody slipping a backhander to the buying
manager of a small company in order to sell particular goods to
that company. I am not sure I would want the Serious Fraud Office
to be taken up dealing with that, that is a question of resources.
Q575 Lord Carlisle of Bucklow: Going
to your point and for a moment accepting that, in fact, dishonesty
is not a necessary element in the crime of corruption, nevertheless
can you ever envisage yourself or have you ever given your consent
to a prosecution in a case of corruption where there has not clearly
been a dishonest intent?
Lord Goldsmith: I cannot immediately
Q576 Lord Carlisle of Bucklow: Can
you imagine any?
Lord Goldsmith: I cannot immediately
recall one, that is right, and the most common case that one gets
is where you have probably got the corruption mixed up with a
conspiracy to defraud, to pretend that the bid is the lowest bid
or to put in other false bids to make it look a satisfactory bid,
something of that sort. I can envisage circumstances in which
one would question whether there is dishonesty in, for example,
something which is being done which the agent would have done
in any event. One might say that is still corrupt, it may still
be corrupt because you pay someone in the expectation that they
will primarily be motivated by that, but in fact, they do not
damage the principal at all in what they are doing.
Q577 Lord Carlisle of Bucklow: Would
you envisage giving your consent in those circumstances to a prosecution?
Lord Goldsmith: I am reluctant
to speculate on all circumstances.
Q578 Lord Carlisle of Bucklow: I
Lord Goldsmith: I have indicated
already that if one is searching for something I think the concept
of breach of duty is a more profitable one than dishonesty per
Q579 Lord Carlisle of Bucklow: Certainly
it would get rid of the whole problem of small compliance payments
and corporate hospitality and things of that nature.
Lord Goldsmith: I think the Bill
does that in any event because of the requirement that something
should be primarily in return for conferring an advantage. I am
thinking also of the question Mr Shepherd put to me of what somebody
does in a coalition government. If somebody in a coalition government
is voting with government primarily because of the advantage that
has been promised, I strongly suspect the answer to that is no.
It is because the person believes, at least for the time being,
it is better to support that government than otherwise but in
the example of corporate hospitality I would think the chances
of demonstrating that somebody was accepting a major contract
primarily in return for a lunch is unlikely.
Lord Carlisle of Bucklow: It may be a
bit more than a lunch.