Joint Committee on The Draft Corruption Bill Memoranda

Memorandum from Mr Justice Stephen Silber (DCB 22)


  1.  I was the Law Commissioner responsible for the Law Commission's report on Corruption (Law Corn No. 248). After its publication in 1998, I sat on an Inter-Governmental Committee, which considered these proposals. but I ceased to be involved when I became a High Court Judge in December 1999. All the views I express are my own and not those of the Law Commission or those of the judiciary.


  2.  A new Corruption Bill is long overdue for the reasons set out in Part II of the Law Commission report. Subject to two points, the draft Bill is admirable, setting out clear and comprehensive principles in a form, which is as comprehensible as possible for a subject as complex and as diverse as corruption. I do not regard it either necessary or desirable for there to be specific offences for specific cases if;, as is the case here, the principles appear clearly in the draft Bill.

  3.  I agree with:

    (a)   the abandonment of the presumption as it is no more difficult to prove corruption than it is to prove fraud, for which no presumption is needed. In any event, the presumption is rarely used under its present law because we were told at the Law Commission that if it is, defence counsel can and do explain the unfairness of the presumption to juries and this undermines the value of the presumption;

    (b)   the decision not to make the new offences retrospective as such a proposal would contravene Article 7 of the European Convention on Human Rights;

    (c)   the requirement for consent before a prosecution can be brought. In the Law Commission report we concluded that a consent regime was not necessary, but on reflection, I do not think that the safeguards against unjustified prosecutions relied on by the Law Commission in paragraph 7.25 of its report are valid. Indeed, if there is no requirement for consent before launching a private prosecution for corruption against a candidate in a forthcoming election, a prosecution could be used so as to obtain substantial publicity adverse to the candidate in the election campaign before the complainant withdraws the prosecution or it is dismissed after the election. By then, substantial and irreparable damage would have been done to the person prosecuted.

  4.  My two concerns about the proposals are first, that J am concerned that the Attorney General might have or be perceived as having a conflict of interest if he has to decide if a corruption offence can be brought against a politician. Would it be better for clause 17(1) of the draft Bill to require the consent of the Attorney General or the Director of Public Prosecutions, provided that he can only delegate this duty to certain specified senior officials?

  5.  Second, although the Law Commission proposal and the draft Bill both refer to "functions performed for the public" (see clause 7), I wonder if that wording is sufficiently clear. Do privatised bodies perform functions "for the public" or for its shareholders or both? In addition, in its dealings with its employees, does a local authority performs functions for the public or for the benefit of its employees or both?

  6.  It might well be that this issue will have to he a question left to juries; if that is the case, those responsible for prosecuting might have difficulties in making decisions. I suspect that it might not be possible for the new corruption offences to have a more detailed definition of functions "performed for the public" In any event, this problem ought not to prevent the present admirable proposals being implemented.


  7.  The present law on misuse of public office is in a very unsatisfactory state as the Committee on Standards in Public Life reported. Lord Nolan, who was then its Chairman asked me to take forward the proposals of reforming this Committee and my proposals were then considered by an Inter-Departmental Committee. Although something has to he done about the present unsatisfactory law on misuse of public office, the implementation of new corruption legislation should not be delayed while changes to the law on misuse of public office are being considered.

May 2003

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