Joint Committee on The Draft Corruption Bill Memoranda

Memorandum from Mr Justice Silber (DCB 30)

  1.  This memorandum[1] sets out my reaction to some of the issues, which have been raised in the evidence given to the Joint Committee. These issues include first the critical matter of the problems with the present law (see paragraph 3-19), second the reasons why it is necessary to have a definition of "corruptly" in the new legislation (see paragraph 20), third the suggested difficulties of understanding and applying the proposed legislation (see paragraphs 21-25) and fourth the issue of whether an element of impropriety (such as wrongful, dishonest, undue or a breach of duty) should be an additional requirement for criminal liability in the new legislation (see paragraph 26) and finally the South African Bill (see paragraphs 32-36).

  2.  In order to understand the approach in the draft Bill, it is of vital importance to understand the reasons why the present law is in such an unsatisfactory state. As I will explain, a particularly important factor has been the disagreement over the precise meaning of the word "corruptly", which appears in all the legislative provisions. In addition, by failing to define what is covered by the word "corruptly", the present legislation means that it is often difficult to know whether any particular conduct falls within the scope of the present legislation


  3.  The present law suffers from numerous defects. It is drawn from a multiplicity of sources. Corruption offences are to be found in at least eleven statutes, the most important of which are the Prevention of Corruption Acts 1889 to 1916. Much of that legislation was impulsive being prompted by contemporary problems or fears. Thus it is neither comprehensive nor consistent. There are also many overlapping common law offences such as misconduct and public life, specific bribery offences, embracery (bribery of juries).

  4.  Against that background, it was not surprising that the Royal Commission on Standards of Conduct in Public Life (Chairman: Lord Salmon) recommended the rationalisation of the statute law on bribery in its report in 1976. The Committee on Standards in Public Life (Chairman: Lord Nolan) pointed out in its report in 1995 that as the Government had accepted but not implemented that recommendation, that might be a task for the Law Commission.

  5.  Before deciding to take this matter forward, the Law Commission carried out its normal process of asking people and organisations that might be particularly interested if they thought such a detailed review of the law of corruption was justified. The clear message received was that such a review was urgently needed because of defects in the present law. More importantly, the vast majority of individuals and bodies who responded to the Law Commission Consultation Paper supported the need to reform the existing law of corruption.

  6.  The main criticisms of the present law are:

(i)   The uncertainty of the meaning of the word "corruptly", which is used frequently as the basis of criminal liability in the existing legislation

  7.  At the forefront of the criticisms of the present law is the use of the ambiguous word "corruptly" in each of the main corruption statutes. This term is not defined in the legislation and its meaning has been the subject of probably six different conflicting judicial interpretations. We were told that this has led to difficulties for lawyers in advising and prosecutors in determining whether to prosecute.

  8.  The first interpretation came in the mid-nineteenth century House of Lords case of Cooper v. Slade (1858) 6 HL Cas. 746; 10 ER 1488, concerning bribery at elections and the Corrupt Practices Act 1854, in which Willes J took the view that the word "corruptly", as it appeared in the legislation, did not mean "dishonestly" but that it meant "purposely doing an act which the law forbids as tending to corrupt voters". Second, in the Bradford Election Case (No.2) (1869) 19 LT 723, 728, Martin B held that corruptly was not otiose and had to be given some meaning which he stated was akin to an evil mind.

  9.  A third view emerged in the more modern case of Lindley [1957] Crim LR 321, in which the defendant was charged under the 1906 Act with bribing the servants of a company as an inducement or reward for setting up a contract for a supply of peas, Pearce J interpreted "corruptly" as meaning a dishonest intention "to weaken the loyalty of the servants to their master and to transfer that loyalty from the master to the giver". Lindley was followed in Calland [1967] Crim LR 236, in which case the defendant, an inspector of a life assurance company, was charged under the 1906 Act with rewarding an agent of the Ministry of Social Security for keeping him informed about the names and addresses of the parents of new-born children. Veale J held that "corruptly" meant "dishonestly trying to wheedle an agent away from his loyalty to his employer"; and, therefore, if the defendant's actions amounted to "sharp practice" and not "dishonesty", he was not guilty of corruption.

  10.  In Smith [1960] 2 QB 423, where the defendant was charged under the 1889 Act with offering a gift to the mayor of the borough of Castleford in order that the mayor should use his influence with the borough council in favour of the defendant, the Court of Appeal approved the dictum of Willes J in Cooper v. Slade. Nevertheless, the Court of Appeal adopted a fourth view because according to Lord Parker CJ,

    "corruptly" here used ' denotes that the person making the offer does so deliberately and with the intention that the person to whom it is addressed should enter into a corrupt bargain" (ibid, at p 428).

  Lord Parker recognised that this construction arguably rendered the word "corruptly" redundant. He suggested, however, that even if this were so in cases involving inducements, the word "corruptly" might have an independent function in the case of rewards (ibid, at pp 428-429).

  11.  It is possible that a fifth approach emerged in the later case of Wellburn (1979) 69 Cr App R 254, involving charges under the 1906 Act as in that case the Court of Appeal again approved the words of Willes J, taking the view that "corruptly" was an "ordinary word", the meaning of which would cause a jury little difficulty (ibid, at p 265, per Lawton LJ). A sixth possible approach emerged in R v. Harvey [1999] Crim. L.R. 70 CA, when the Court of Appeal held that dishonesty was not an element of obtaining "corruptly" within section 1(1) of the 1906 Act. Instead, the word corruptly was to be construed as meaning deliberately offering money or other favours, with the intention that it should operate on the mind of the person to whom it was made so as to encourage him to enter into a corrupt bargain. The Court of Appeal considered that dishonesty was a different concept from corrupt behaviour.

  12.  With so many different views of what is meant by "corruptly", clarifying legislation is urgently called for to remedy this disturbing defect.

  13.  These differences in interpretation of the word "corruptly" are very disturbing. It is also dangerous merely to expect a jury to construe. The stark fact is that different people will have different views on whether some conduct is corrupt. It, for example, was clear from the Law Commission's consultation exercise that some people regarded any form of business entertainment as corrupt and others considered that it was only in the most unusual cases that it could be corrupt. Thus although everybody would have a view on what is corrupt their reasoning processes would be different as they did not have any prompting as to what were the hallmarks of corrupt behaviour. Clauses 5, 6 and 7 of the draft Bill correctly seek to address this worrying defect in the present law by setting out what has to be shown before an act will be regarded as having even done "corruptly".

(ii)   That even if the word "corruptly" had a clear and accepted meaning of the kind suggested in any of the cases, it would be difficult to predict whether any proposed behaviour would fall within its remit.

  14.  This objection relates to the difficulty for citizens in predicting what behaviour would fall within the existing legislation even if it had clear meaning. It is of critical importance that respect for citizens as rational autonomous individuals with social and political duties require that they receive fair, clear and proper warnings of the criminal law's provisions and that they should have no undue difficulties finding out what is covered by them

  15.  Apart from the fact that there was no agreement on what was meant by the word "corruptly", there was also a general feeling of those involved in the criminal justice system that a vice of the present law is that it is difficult to predict what conduct falls within any particular definition of the word "corruptly". Indeed, no one is quite sure whether certain conduct would fall within any particular meaning of it. This view was shared by lawyers who have to advise on what constitutes corrupt behaviour and "grass roots" prosecutors who had to decide whether to prosecute for corrupt behaviour. For example, as I have explained, some people told me that they regarded all business entertainment as being benefits conferred corruptly, while others believed that no such entertainment could be considered as conferred "corruptly".

  16.  There was a general feeling that the answer to this valid and critically important complaint is to ensure that the legislation spells out clearly what it means to confer or obtain an advantage "corruptly". This is done effectively and clearly in clauses 5, 6 and 7 of the draft Bill, which indicates clearly what question the fact-finder was to resolve. This remedies the disturbing defect in the present law.

(iii)   The distinction between "public bodies" and "non-public bodies" in the current statutes

  17.  The current law distinguishes between "public bodies" and other bodies. At first, corruption law was only applied to public bodies under the 1889 Act and then it was extended to the private sector (under the 1906 Act), but that extension was not mirrored by the application of the presumption of corruption under the 1916 Act, which was again confined to public bodies. The main justification for the distinction appears to be the view that higher standards of conduct are required in the public sector than in the private sector. This justification might be more convincing if the distinction were on the basis that higher standards were required in the public sector than the private sector, but that is not so. The distinction has no direct bearing on the question of what conduct is corrupt, but only primarily on the evidential ease with which the case of corruption can be proved as with the presumption.

  18.  The problem of the public/private distinction is compounded because of the uncertainty at the present time as to what is "a public body". Many forms of public bodies have been privatised and it is by no means clear whether they are still to be regarded as "public bodies". The test for identifying "a public body" is not clear. In any event, it is difficult to see why it should be a more serious criminal offence to give a bribe to a postman to deliver letters earlier than those of the donor's neighbour than it would be to give an inducement to an employee of a private company in order to obtain a multi-million pound contract.

(iv)   The difficulties caused by the significance attached to an agency with its limited definition in the 1906 Act.

  19.  The important 1906 Act is concerned with the corruption of agents who are defined as including any person "employed by or acting for another" (1906 Act s1 (2)), or a person serving under the Crown or any public body.

  20.  This leads to a substantial number of difficulties, as a number of bodies would be excluded from the 1906 Act. Thus it is thought that the spouse of an employee of a private company who receives a corrupt gift may not be caught by the 1906 Act, although that spouse might be liable under the 1889 Act. In addition, there is some reason for considering that a police officer is not an agent for the 1906 Act because in Fisher v. Oldham Corporation [1930] 2 KB 364, it was held in a civil case that a police officer was not an agent of the Borough Watch Committee that appointed him, but rather a servant of the state. It is also thought that local councillors are not covered by the 1906 Act.


  21.  As I have already explained, the absence of any definition of the word "corruptly" in the existing legislation has led to disturbing uncertainty as to what it means and how it would apply to actual or proposed conduct. It is of the greatest importance that criminal offences should be clearly and properly defined, not merely that citizens should know what they are not permitted to do but also that prosecutors can reach decisions on whether a prosecution can be instituted for corruption. Clauses 5, 6 and 7 of the draft Bill do this effectively and clearly.


  22.  The Law Commission endeavoured to produce offences, which were as easily comprehensible as was possible in the light of the subject matter. Unfortunately, the concepts required to establish the threshold for criminality involved in corruption offences are much more complex and consequentially more difficult to express than those in, say, assault cases Thus the drafting of the proposed legislation becomes more difficult once it is accepted that the experience with the existing corruption legislation means that it is appropriate and sensible to give statutory guidance on the meaning of "corruptly". That explains why what has to be proved before an act is regarded as having been done "corruptly" is described in the Law Commission proposals and in the draft Bill.

  23.  The Committee appears concerned about whether juries will be able to understand the law, but I do not consider that that it is a major problem. It must not be forgotten that juries listen to and comply with directions of law from judges. The judge would have the benefit in each case of an indictment (charge), which would set out the relevant wrongful acts, which it is contended by the prosecution that the defendant has committed.

  24.  It will become clear from the evidence and the admissions at the trial which of those issues are disputed or admitted before the evidence closes or during closing speeches. The judge would then focus in his summing-up on the particular issues in dispute in the trial and then explain to the jury the issues that they will have to resolve questions. When I preside over criminal trials, I almost invariably give to the jury a written document giving them the questions that they should answer in order to reach their verdict. In a corruption trial based on the proposed Bill, the task for the jury would not be particularly difficult.

  25.  Thus, if there was a charge of conferring an advantage corruptly as set out in Clause 1(a) of the draft Bill, I would explain to the jury that the prosecution would have to satisfy them that:

    (1)  the defendant paid to X £100,000 (clause 4 (1) (a));

    (2)  that payment was made as a result of a request by X the recipient (clause 4 (1) (b));

    (3)  it is intended that X would ensure that he recommends to his employers that a contract be given to the defendant and that the defendant believes that this recommendation would be done primarily in return for the payment (clause 5 (1) );

    (4)  the recipient is not performing a public function and the defendant is not acting on behalf of X's employer (clause 6); and

    (5)  X's employers do not consent to his receipt of this payment to X (clause 7 (1) (b)).

  26.  On each issue, the judge will in his summing-up, point to the relevant evidence in respect of each of those issues. The jury will find it much easier to understand and resolve those issues than, say, the issues in many murder cases where the possible verdicts open to the jury are often guilty of murder, guilty of provocation manslaughter, guilty of no-intent manslaughter, guilty because of diminished responsibility or not guilty.


  27.  It is implied in the offences in the proposed Bill that there has to be a breach of duty before criminal liability arises and the question is whether this should be expressly stated in the terms of the offence. My provisional view is that little would be gained by doing so but there are positive disadvantages as it would introduce an additional requirement that would have to be proved. I am not sure that it is necessary or anything would be gained. In principle, criminal offences should not have unnecessary requirements, especially in an area as complex as corruption.

  28.  In any event, I would oppose the introduction of the other suggested additional requirements in the new offence such as the specific need for the wrongful act not merely to be corrupt but also to be wrongful, dishonest, undue or undue conduct. There are three main reasons for this.

  29.  First, all the same objections must be made to the use of words such as dishonesty or wrongful, as apply to the word "corruptly" which I have already explained. No two people will agree on what conduct falls within that definition of dishonesty or wrongful. In other words, these words lack legal certainty, which will preclude citizens from understanding what they can and cannot do so as to avoid criminal liability. Furthermore, prosecutors will have great difficulty in predicting how fact-finders will construe those provisions and in deciding whether to prosecute. What is needed is guidance to the fact-finder from the legislature on what mental element has to be shown and the draft Bill does that effectively.

  30.  Second the use of such words are redundant as a significant purpose of the Law Commission proposals and of the draft Bill is to ensure that conduct, which amounts to corruption is specifically described in clauses 5, 6 and 7 of the draft Bill.

  31.  Third, in its Consultation Paper on Corruption (LCCP 145), the Law Commission provisionally recommended that an additional requirement of dishonesty should not be included in any new corruption offence (paragraph 8.38). This proposal was accepted by 90% of those who responded on that issue.


  32.  The South African Bill is not a helpful precedent as it has at least four major defects. First the definition of "corruptly" in Clause 1 (vi) of the Bill is so wide that no citizen will be able to know whether conduct is covered by it; similarly no prosecutor will be able to predict if some conduct is criminal. The provision states that "corruptly" means "in contravention of or against the spirit of" not merely any law but also any "policy, practice. . . pertaining to any employment relationship, any sporting event. . ." (with italicised emphasis added). I have no idea whether any particular acts would be covered solely by those italicised words but more importantly, I cannot believe that any citizen or prosecutor would know either.

  33.  Second, to follow the South African precedent would mean forgetting all the lessons and problems, which we have learnt in this country about the difficulties of using the word "corruptly". Indeed the South African precedent is much worse than the existing law because of the many ambiguous ways in which a party can be shown to have acted "corruptly".

  34.  Third, under the South African Bill, there are many specific offences apart from general corruption offences. This runs contrary to the aim in this country, which is to keep the number of criminal law offences to the minimum.

  35.  Fourth, I am not aware of what the suggested specific offences could achieve in the form of conduct, which is not covered by the offences in the draft Bill but which should be criminal offences.

June 2003

Second, I am a serving judge and that precludes me answering certain questions. A copy of the present version of the general guidance for the judiciary on giving evidence before Committees has been sent to your Clerk.

Third, I have no knowledge of the matters giving rise to the liability of Parliamentarians.

1   I must mention three caveats. First, the Law Commission proposals were drafted at the end of 1997. Thereafter, I was only involved in considering them on a sporadic basis until I left the Commission in 1999. Since then, I am afraid to say that I have not given them much thought. Back

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