Supplementary memorandum from Mr Justice
Silber (DCB 33)
1. I was pleased to have had the opportunity
of giving evidence to the Committee, but there are a number of
outstanding matters on which I need to comment. First, I will
make some comments on the drafting of the draft Bill. Second,
I will deal with the Chairman's example where two businessmen
are considering tendering for a contract and one gives to the
other £100,000 so that he does not tender (Q612) and thirdly,
I will comment on the issue raised by Lord Waddington of the baggage
handler who was offered £10 to get somebody's luggage first
(Q655). Finally, I will explain why the interesting offence envisaged
by Dr Turner (Q657) would not deal with the problems of corruption.
2. A critical point in understanding what
is covered by the draft Bill is that corruption is, in the words
of the Oxford English Dictionary conduct, which would "destroy
or pervert the integrity or fidelity of (a person) in the discharge
of duty". I stress the significance of the word "duty".
As I will explain, some of the wrongful or the alleged wrongful
conduct raised by the Committee when I gave evidence falls outside
the scope of any offences on corruption. The draft Corruption
Bill is not concerned with restrictive practises or any fraudulent
conduct, which does not fall within the scope of corruption as
3. Lord Justice Rose, Vice-President of
the Court of Appeal (Criminal Division) has authorised me to say
that in answer to a request from the Home Office, he has written
to say that he approves of the draft Bill.
(i) Drafting points on the draft Bill
4. There are two suggestions that I have
to make on the drafting. The first is that the word "functions"
in clauses 5, 6, 7, 10 and 11 should be replaced with the word
"duties" or there should be a provision defining "functions"
as including "duties". As I explained when I gave oral
evidence, the purpose of the legislation is to penalise those
who are coerced into failing to perform their duties. That accords
with the definition of corruption in the Dictionary as explained
in paragraph 2 above.
5. Indeed, if an agent is persuaded to recommend
acceptance of a particular tender in return for a payment, the
basis of his criminal liability is that he has thereby been induced
into not performing his duties. This payment does not interfere
with his functions, which are to make recommendations on the tender
that should be accepted, but it does undermine his duty, which
is to ensure that he recommends acceptance of the tender most
favourable to his principal.
6. The second suggestion would be that the
ingredients of the particular offences should be spelt out in
full, rather than by reference to other parts of the legislation.
At present, the offences are set out in clauses 1, 2 and 3 with
the further requirements of each of the three offences then set
out in different clauses scattered around the Bill.
7. I, for my part, would find it much easier
to understand the draft Bill if all the ingredients of each offence
were set out in the same provisions. That would mean that clause
1, dealing with corruptly conferring and advantage might read
1. A person commits the offence of corruptly
conferring an advantage if the following five requirements are
2. The first requirement is that the
person does something (for example, makes a payment) or he omits
to do something, which he has a right or duty to do [this is clause
3. The second requirement is that this
act or omission is done or made in consequence of another's request
(express or implied) or with the result (direct or indirect) that
another benefits [this is clause 4(1)(b)].
4. The third requirement of conferring
the advantage corruptly can be satisfied in one of two alternative
ways. The first way is if the person who confers the advantage
or offers or agrees to confer advantage (i) intends a person (A)
to do an act or make an omission in performing functions as an
agent of another person, (B) or as an agent of the public and
(ii) he believes that if A did the act or made the omission, it
would be primarily in return for the conferring of the advantage
(or the advantage which he conferred) whoever obtains it.
5. The second way in which the third
requirement can be satisfied is if the person who confers an advantage
or offers or agrees to confer an advantage (i) knows or believes
that a person A has done an act or made an omission performing
functions as an agent of another person B or as an agent of the
public (ii) knows or believes that A has done the act or made
the omission primarily in order to secure that a person confers
an advantage (whoever obtains it) and (iii) intends A to regard
the advantage (or the advantage when conferred) as conferred primarily
in relation for the act or omission.
6. The fourth requirement is if the
agent is acting on behalf of a principal or the public in circumstances
set out in [what was clause 6].
7. The fifth requirement is that the
principle does not consent in any of the circumstances set out
in [what was clause 7].
8. There would then have to be separate
provisions in the form of what are now clauses 6 and 7, which
would apply to each of the other offences.
(ii) The Chairman's example of a businessman
offered money so as not to tender against a competitor in return
for a payment (Q612)
9. The Chairman gave the interesting example
of a businessman who is given £100,000 not to tender against
a competitor and then takes the money and does not tender. Lord
Campbell-Savours also asked about it (Q615 and 616). This has
nothing to do with corruption as neither businessman is interfering
with a duty owed by either to the tendering party. Section 188
of the Enterprise Act 2002 contains offences relating to cartels
and they include a specific bid rigging offence. In addition,
the Chairman's example would probably be a conspiracy to defraud,
which is a very wide offence. The term "intent to defraud"
was held to mean "to practice a fraud" in Welham 
AC 103 per Lord Denning.
(iii) Lord Waddington's example with
the baggage handler (Q655)
10. Lord Waddington raised the interesting
question of the criminal liability of a baggage handler at an
airport, who was given money by a passenger in order to try to
extract an item of luggage of that passenger before recovering
the luggage of other passengers. On the assumption that the contractual
duty of the baggage handlers as employees of the airport authority
was to recover luggage in a certain order and not to favour any
particular passenger, then if a particular baggage handler accepts
money in order not to perform this duty, it would be a corrupt
payment under the terms of the draft Bill. This is not an undesirable
consequence as otherwise he who pays most to a baggage handler
would obtain his luggage earliest.
(iv) Dr Turner's suggested formulation
of a new offence
11. Dr Turner asked me (Q657) if a way of
expressing a crime of corruption might be by way of an analogy
with a crime for attempting to pervert the course of justice.
He thought one way that it could be expressed was:
"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'?"
12. I regret to say that I do not consider
that this thoughtful formulation would meet the problem of those
who confer or take an advantage in order not to perform their
duties. That is the essence of corruption, which is not concerned
with, perverting, frustrating or affecting detrimentally the proper
function of competitive markets as that is the function of competition
law or insider dealing, which is a different area and which is
outside the scope of the present project. It does not fall within
the definition of corruption as explained in paragraph 2 above.
The Law Commission is working on reporting offences of fraud and
it might well be that their proposed offences would or should
cover these matters.
13. Another problem is that the suggested
formulation in Dr Turner's question would not cover the case where
an individual gives a sum of money to, say, a goalkeeper in return
for a promise from him that he would deliberately let in goals
in a football match. That conduct would undoubtedly be corrupt
conduct but it would fall outside Dr Turner's formulation, which
is not based on a breach of duty.
14. In any event, I consider it very important
for offences to be sufficiently clear so that people know in advance
what they can and cannot do. I am bound to say with respect that
I do not consider the suggestions (a) or (b) in Dr Turner's formulation
are sufficiently well-defined. I have no idea whether particular
conduct would "frustrate .. the delivery of public services"
or "pervert, frustrate or affect detrimentally the proper
function of competitive markets". There is likely to be uncertainty
about what is meant by "the delivery of public services"
and "the proper function of competitive markets". I
fear that Dr Turner's formulation might mean that it would be
difficult for prosecutors and citizens to know what conduct was
15. I hope that I have now answered all
the outstanding points but if I have not or if I can help the
Joint Committee in any way, I would be pleased to try to do so.