Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 660-679)


10 JUNE 2003

  Q660  Dr Turner: My recollection is that the witness told us that other countries in their legislation have pursued the question of undue reward, advantage, etc, as has been suggested earlier.

  Mr Justice Silber: Yes. As I say, I do not know, but in order to do it somebody would have to let me have copies of the OECD documentation.

  Q661  Chairman: We will do that. Can I just ask you about something you dealt with fairly fully in your paper? At the beginning of this inquiry we were told by some people that the South African model was one that we should follow. There was quite a lot of support for that; in other words, that we should have separate offences precisely defined and people would know exactly where they were. Could you tell us again why you thought that was not a good idea? Did you consider something like that?

  Mr Justice Silber: Yes. We considered very clearly as to whether we ought to have separate offences. Indeed, that was very much the policy behind the Theft Act 1968, with a whole series of different offences, and a residual offence of theft. We came to the conclusion that there are so many different types of corruption that nothing would really be gained by having separate offences. We also were very much influenced by the fact that it must be the aim of every legal system to have as few criminal offences as possible rather than vast numbers of them. I would be very strongly against using the definition of "corruptly" in the South African Bill which is so wide and so unclear as to be of no value at all. It would make it impossible to predict what conduct would constitute the offence and what would not. One which did strike us when we analysed where people said that the new criminal law on corruption should bite was just how many different areas it came in and therefore, instead of having all those different instances, which were very wide, all round the private and public sectors, we thought the best thing was that we could do it in one offence and we should try to do it; otherwise there literally would be dozens of them.

  Q662  Lord Campbell-Savours: In your paper of 9 June, paragraphs 32 to 35, you use some fairly strong language in terms of the South African example. Have you been in discussions with them at all about their proposals for legislation?

  Mr Justice Silber: No. I left the Law Commission in 1999. The South African Bill is a new Bill. When we prepared our proposals, we looked at all the legislation in force in the different countries. I do not know if you have seen the copy of our consultation document. That shows how corruption was dealt with in different countries at the time. Therefore, we were only looking at the existing legislation. The South African Bill is obviously a very new development.

  Q663  Lord Campbell-Savours: The language you use suggests that the Bill as proposed in South Africa would simply collapse when it comes into operation.

  Mr Justice Silber: I am afraid I do put it very strongly in paragraph 32 because I do feel that the use of the word "corruptly" there is so wide that nobody will know what is covered by it. I feel very strongly that if we were to introduce that sort of legislation in this country it would be a step backwards because nothing would be gained by the legislation. One of the clearest lessons from the present legislation is the great difficulties caused by using the word "corruptly". Giving it an extended meaning there would cause even more problems than we have had up until now.

  Q664  Lord Campbell-Savours: Your words are, "First, the definition of `corruptly' is so wide that no citizen would be able to know whether conduct is covered by it. Similarly, no prosecutor would be able to predict if some conduct is criminal."

  Mr Justice Silber: Perhaps I put it too strongly then. There is obviously some conduct that would be covered by it, and you would know it was covered by it but you certainly would not know the boundaries of it, which is the real problem about it. It is really that which is very difficult. I do not know the meaning of the italicised words I have set out there in my memorandum, "against the spirit of any policy practice". With respect, I do not think anybody who is advising would know either. Therefore, that is the great problem. The approach that we tried to adopt was to have legislation where we endeavoured to give some meaning to the word "corruptly".

  Q665  Chairman: That takes us back to Lord Waddington's point, especially when you have to read section three with sections ten and five. Is it sufficiently clear for people to know what you are gunning for, not only sufficiently clear for the prosecution but sufficiently clear for people arranging their business affairs?

  Mr Justice Silber: I do not know if it would be assisted by inserting in clause one, the operative words of clause five so that you would have clearly set out what the requirements were. If it was to say, "A person commits an offence if he (a) confers an advantage; (b) intends the recipient to do an act" and then (c), that used to be the way that criminal provisions were drafted. If that was done, it might well be much easier to follow because you would not have to keep looking at different parts of the different provisions. For my part, I would find it much easier if it was put in that particular form, if it just said, "A person commits an offence if he . . ." and then (a), (b), (c), (d) and (e) and then you moved the relative bits from five into that clause. I would find that probably easier rather than having to look from clause to clause.

  Q666  Chairman: It is going to make a very long clause.

  Mr Justice Silber: Yes, but it would still say "if the following four ingredients are satisfied".

  Q667  Lord Waddington: You have already said that there are other concepts in the Bill which are not exactly helpful, where there might well have to be redrafting. I am looking at clause seven and remembering what was said to us by Mr Staple. I do not know whether you saw his evidence?

  Mr Justice Silber: Yes, I did.

  Q668  Lord Waddington: He pointed out that if, under an arrangement with the government, a private toll was operating the person who received the toll might be committing a criminal offence because he was performing a function for the public, which is not completely daft when you come to think of it because he is performing the function only because of an arrangement made between the government and the private toll operator. When you mentioned earlier that there perhaps was room for some refinement of this reference to functions performed for the public, I wondered whether that was not an example of the need for a change.

  Mr Justice Silber: It might well be. My instinctive reaction, on the example that you give, was that a private function was being performed, but that might be a matter clarified on the drafting of it. It would be a matter which, by some sort of definition section, could be dealt with. I think I said in my first note that I was a bit worried about this wording.

  Q669  Lord Carlisle of Bucklow: In paragraph 22 of your paper you say that the Law Commission endeavours to produce offences which are as easily comprehensible as possible in the light of the subject matter to be dealt with. You go on to say, "Unfortunately, the concepts required to establish a threshold for criminality involved in corruption offences are much more complex and consequently much more difficult to express than those in, say, assault cases." Are you satisfied you have the threshold right in the end, or is there still a situation where we may be criminalising a lot of conduct which the average individual would not look upon as criminal?

  Mr Justice Silber: I do not think it does criminalise matters which ought not to be criminalised, on my reading of it. The type of illustration that George Staple gave is something where that is a private function matter.

  Q670  Lord Carlisle of Bucklow: But you do agree that there is a difficulty with getting the threshold of criminality right?

  Mr Justice Silber: Yes. The real difficulty is of working out what the litmus test should be for criminal liability.

  Q671  Lord Waddington: This Bill would appear to criminalise what people call facilitation payments and there is a world of difference, one would have thought, between a payment to somebody to get a service unfairly and against the interests of others and a payment made to get your legal rights. I keep quoting my baggage handler. I am entitled to my bag. That fellow's ordinary duty is not to go behind the carousel and hunt for Waddington's bag but if I slip him £10 in order to go behind the carousel and get the bag am I not right that that is a criminal offence under this Bill? Surely that is a fairly good nonsense?

  Mr Justice Silber: I am not sure it is. It depends what his duties actually are. I would be concerned if that form of conduct was a permissible form of conduct.

  Lord Waddington: It would appear to be so because it is not in the course of his ordinary duty to take tips from members of the public and I have asked him to do a job which is not his ordinary job. He is not normally in front of the carousel. He is usually behind it, but I see him so I say, "Go behind and get my bag. I am in a terrible hurry." I challenge you to say that that is not a criminal offence under this Bill. I think it is.

  Baroness Whitaker: I suggest it might be correctly so because in so doing he has not got my bag and I am in just as much of a hurry as you are.

  Lord Waddington: Baroness Whitaker is suggesting it ought to be a criminal offence. It seems to be a criminal offence to me but I do not think that all the public would agree.

  Q672  Chairman: Baroness Whitaker may have a certain amount of support. Could I ask a question on clause seven? The consent of the principal is, in certain circumstances, to be a defence. Do you see any difficulties in practice with applying that?

  Mr Justice Silber: No, I do not think so.

  Q673  Chairman: Is it going to mean that people get off when they should not get off?

  Mr Justice Silber: I do not think so. There are a lot of cases where there might be some benefit given and the principal is quite happy about it. This goes back to the whole function of the law on corruption.

  Q674  Chairman: If you confine it to principal/agent and a breach of loyalty only for principal and agent, of course you exclude a lot of other things which some people would think should be included.

  Mr Justice Silber: Knowledge of all the circumstances and permitting something to be done in that way, yes. In a lot of cases, it might well form part of the person's pay package that they do get benefits of that sort.

  Q675  Baroness Whitaker: The estate agent I deal with owns his own firm. He is the principal. I offer him money for his own pocket, not to go into the firm, not as commission, if he takes my bid for a house which is a little lower than another one he is offered, so I get my house at a lower price and he gets quite a nice present. That appears not to be corrupt.

  Mr Justice Silber: Yes, it would be.

  Baroness Whitaker: Is it? It is an entirely private transaction and the principal consents. He is the principal. He has not put this payment through the books. He has just kept it.

  Q676  Mr Stinchcombe: Is he not the agent and the vendor as well?

  Mr Justice Silber: He is. That is precisely the problem with that. The vendor normally pays the commission and therefore that would mean that—

  Q677  Baroness Whitaker: So that is caught?

  Mr Justice Silber: Yes.

  Q678  Chairman: We would be very glad if you would send us your written comments on the topics you have mentioned and indeed anything else you feel worth mentioning.

  Mr Justice Silber: If there is anything else that the Committee thinks I could help with, I would be delighted to try to do so.

  Q679  Chairman: It may well be that there will be other things we would like to ask you and we will put those in writing.

  Mr Justice Silber: I would be flattered if you did so.

  Chairman: We are very grateful to you for coming today.

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