Further Memorandum from Mr Justice Silber
1. This memorandum
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
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
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
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
(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  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 
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
10. In Smith  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  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
(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
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
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  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
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
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
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
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.
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