Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 640-659)


10 JUNE 2003

  Q640  Baroness Whitaker: Yes, but a specific offence of trading in influence—do you think that is covered in clauses 1 to 3 as Lord Falconer said?

  Mr Justice Silber: I suspect it probably would be. It is much easier to test it by means of an example. When I thought about this I thought that it would be covered by clauses 1 to 3 as falling within that, yes.

  Q641  Baroness Whitaker: I cannot think of an example. Can you?

  Mr Justice Silber: You would still be conferring an advantage or it would normally fall within one of those areas because it would either be performing a function corruptly or conferring or obtaining an advantage.

  Q642  Lord Waddington: Is it not correct that in some countries there is an offence of abuse of public property? Is that a starter, catching anyone who places contracts on behalf of the public? I think that was suggested as one possibility.

  Mr Justice Silber: I do not know what happens with that.

  Q643  Lord Carlisle of Bucklow: There is an offence in this country of misfeasance in public property.

  Mr Justice Silber: There is.

  Q644  Lord Carlisle of Bucklow: Did the Law Commission consider that because it covers a lot of corruption?

  Mr Justice Silber: We in fact started doing corruption with a lot of support from Lord Nolan and his Committee and then we also looked separately at misuse of public office which looked into all those areas. I did that for a number of reasons in my sole capacity but that really was put on ice while Dame Shirley Porter's case was going through the courts. The issue in that case related to what was legitimate political activity. It is a very important area and is a necessary part. It would be useful if somebody could at some stage decide whether or not we do need that sort of thing.

  Q645  Lord Carlisle of Bucklow: Can one look at corruption in isolation?

  Mr Justice Silber: Oh, very much so.

  Q646  Lord Carlisle of Bucklow: And also where there is misfeasance in public office?

  Mr Justice Silber: Very much so, because corruption has got very different elements to it and is achieving different purposes. There might be some cases where you are caught by both but certainly, for example, private law matters and private capacity matters are completely—-

  Q647  Chairman: Even trading in influence arguably might be picked up by one of the criminal offences here. There is no question of either misfeasance in public office or abuse of public property in themselves forming crimes under this Act, but if they do exist as separate potential criminal offences should they come into this Act or should they just be a separate Act?

  Mr Justice Silber: I think they should be a separate Act because it raises a whole series of different issues. It brings up points about the inter-relationship between that offence and the word of the Ombudsman and the Local Government Ombudsman. You are dealing with different concepts and you have to work out how it would fit in with the existing points. One of the difficult areas is to work out what happens if a politician who is elected wants to do something and tells his officials to do it to determine their duties in that situation.

  Chairman: We have had a number of suggestions that perhaps some adverb might be introduced into the definition.

  Q648  Mr Stinchcombe: One of the suggestions that has been made is whether we should incorporate the word "dishonestly". I do not know whether you have any views as to whether that will strengthen or weaken or harm in any way the legislation?

  Mr Justice Silber: I am very strongly against that because the word "dishonestly" is a very uncertain word. It means different things to different people. For example, is it dishonest if I were to take a picture into an antique dealer and he said, "Oh, that is a Canaletto", and I knew it was not but I receive a very large sum of money on the false basis? Is it dishonest for me to use the telephone in the Law Courts to phone home or my aunt in Australia? Where does the use of phones become dishonest? In many statutory offences, the word "dishonestly" is used where the matter would normally be criminal in itself, for example, obtaining property by deception would in most people's minds be a criminal act and therefore the word "dishonestly" in the statutory definition of that offence does not add very much to it. In the case of theft, where you have appropriation of property belonging to another, that in itself would normally be a dishonest act and the main thing that "dishonestly" achieves in the statutory definition is to make sure that people are not convicted if they have got a bona fide good faith right to the item in question. There "dishonestly" is not doing all the work to define the offence. If you wanted to put "dishonestly" into an offence, it would then be achieving a substantial function and has a totally uncertain meaning.

  Q649  Lord Waddington: One thing you do say is that the offence does imply a breach of duty.

  Mr Justice Silber: Oh yes.

  Lord Waddington: If the offence implies a breach of duty I cannot for the life of me see why some words such as those could not be incorporated into the Bill. You see, the difficulty is still the one I identified earlier on. You have somehow got to tell the ordinary layman when he crosses the line and begins to commit a criminal offence and I do not see how, reading this Bill when there is not the slightest mention of anything approaching moral turpitude or wrongdoing or all the rest of it, he could possibly be expected to understand that he has committed a criminal offence, as I mentioned earlier, if he slips ten quid to a baggage handler. I just do not understand what the objections are to reinforcing the point that there must be moral turpitude. I am not sold on "dishonestly". I would like you to answer why you object to any of these terms. All sorts of terms have been floated which have "undue", which have "unfair", we have had "breach of duty". "Dishonestly" is only one in a whole rag-bag of possibilities but I cannot see why you exclude all of them.

  Q650  Chairman: They are two quite different categories. One is breach of a legal duty and the other is a breach of a moral duty. Why should not one of those somehow creep into this?

  Mr Justice Silber: Could I put something in writing, because I would like to think about the point you have mentioned, about replacing the word "functions" in Clause 5(1) with "duties"? I do not know if that would make it easier because that might answer Lord Waddington's point, because if you look at that, and if one were to replace in 5(2)(a) the word "functions" with "duties", that is something I would very much like to think about. I am not attracted at all by the use of words like "undue" or "wrongful" because if I had a client who asked me what those words meant in the context of a case I think I would scratch my head and I would have to say I do not know the answer.

  Q651  Chairman: We have been told that "unduly" obviously comes from the civil law and dûment is a well known word in French law, not just immorally but including illegally in some way.

  Mr Justice Silber: The trouble with using a phrase like "performing your functions in an illegal manner" is that that just begs the question.

  Q652  Chairman: Not necessarily. You would receive a bribe in the performance of something which was otherwise unlawful.

  Mr Justice Silber: Yes. I think the word "duties" might well be a word that might make it much clearer. "Duties" entails an obligation rather than the word "functions" which I think means a sort of mode of working.

  Q653  Chairman: But were you influenced in leaving out "dishonestly" and some of these other words by what the courts had said over the years? I think the courts said in one or two cases that "corruptly" did not mean dishonestly.

  Mr Justice Silber: Yes.

  Q654  Chairman: Did that influence the Law Commission?

  Mr Justice Silber: Our general view has been that that has influenced us. The other point was that in another context we found that the word "dishonestly" is such a vague and uncertain word that people would not know in advance what would be caught by it and what would not be caught by it. As I said in answer to Mr Stinchcombe's question, it is all right using the word "dishonestly" where it has really been put into negative criminal liability in litigation circumstances. In other words, in theft, if you found the item in issue by mistake or you thought it had been abandoned the requirement for the act to be done dishonestly absolves you from criminal liability, but where you try to get it to do all the work then I think you are running into serious difficulties.

  Q655  Lord Waddington: I think I would clearly be behaving dishonestly if I gave a baggage handler ten pounds to go and get somebody else's bag but I would not be behaving dishonestly, would I, if I told him to go and find my bag? That is the difference.

  Mr Justice Silber: As I say, I have put in my note what I think is wrong and the problems about the word "dishonestly", but I do not know if you think it is worthwhile thinking about replacing the word "functions" with the word "duties".

  Chairman: It would be very kind and perhaps you would send us a note about it.

  Q656  Mr Stinchcombe: On that suggestion, if you do that, so that the core wrongfulness is the breach of duty, does that not make misfeasance in public office much more a corruption offence because there you can readily imagine a public officer exercising powers and duties in a completely malevolent fashion, deliberately refusing to give people tenancies in council houses because of the colour of their skin or sanctioning play equipment next door to somebody they do not like because it causes a disturbance?

  Mr Justice Silber: Misfeasance in public office is an extremely vague offence; that was the feature of it that upset Lord Nolan. He thought that the offence was so uncertain that nobody knew what it was. The big difference between that and corruption is that in corruption there is a benefit being offered or conferred. In misfeasance in public office it can be someone just doing something out of stubbornness, because of omission or laziness or for different purposes. It is the concept of benefit and advantage which is the hallmark of corruption which is really very different from what is construed as misfeasance in public office. You might well get a case where people are caught on both.

  Q657  Dr Turner: I think it could be said that there is something of an analogy that could be drawn with the crime of attempting to pervert the course of justice and involving, clearly, intent, either in the long or medium term, to do that. One way you could express it is to have a crime (a) to frustrate or pervert or interfere with the proper functioning of government, the administration of justice or the delivery of public services, and then (b) to pervert, frustrate or affect detrimentally the proper functioning of competitive markets. That, for instance, would cover the kind of situation I was talking about where you had contractors forming a cartel to force up prices in bidding for local government services. Would you agree that if there was a formulation like that you would not need the complexity of the principal/agent relationship and you might not need to include or define the word "corruptly"?

  Mr Justice Silber: Could I reply to that when I see on paper those conditions which you have just suggested? At first blush I think there are difficulties with it. I would like to look at it and reply to that in writing. I am not trying to be evasive but it would be easier to see what the points are and to point out what might or might not be covered by it.

  Q658  Dr Turner: I am sure that could be arranged. A further suggestion is that we have received evidence from the OECD representative that the Bill falls short of fulfilling our obligations to comply with the OECD treaties. Do you agree with that possibility?

  Mr Justice Silber: I am afraid, and I must apologise, that I do not know what the terms are in the current OECD treaties. Certainly at the time when we drafted our proposals we had every reason to believe that they complied with what the OECD requirements were in 1997. I just do not know what the present position is. I have no access to what their requirements are at the present time.

  Q659  Dr Turner: Perhaps that is another one which will need to be pursued in writing.

  Mr Justice Silber: I would have thought that Lord Falconer or Lord Goldsmith would have a much better idea of what those obligations were than I would.

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