Taken before the Joint Committee on Draft Corruption Bill on Wednesday 14 May 2003
Mr Edward Garnier Bernstein of Craigweil, L
Memoranda submitted by Crown Prosecution Service and Serious Fraud Office
Examination of Witnesses
Witnesses: SIR DAVID CALVERT-SMITH, QC, Director of Public Prosecutions and MR ROBERT WARDLE, Director, Serious Fraud Office, examined.
Q50 Chairman: We are very much obliged to you both for coming, and for the written papers which have been put in by the Serious Fraud Office and by the Crown Prosecution Service. Some of the questions we ask may well arise out of or appear to duplicate the written material, and if there is nothing to add to the written material, you can just say. This is only the second day of our oral evidence, so we have not necessarily yet reached any final conclusions on anything, and we shall be very glad to have your advice. This room needs a certain amount of volume if everyone is going to hear clearly. One of the things that has been said to us by a number of written papers and also yesterday in oral evidence is that corruption seems to be increasing in central government, and perhaps even in government agencies set up under the big changes that took place ten or more years ago. Do you see that happening? Is corruption worse than before?
Mr Wardle: My Lord Chairman, I really could not say. One of the problems is that we have very little information as to the level of corruption, either now or previously. All I can say is that when we investigate suspected offences of fraud, very often corruption is present in the course of those investigations.
Q51 Chairman: It is curious that the main corruption cases appear to come from the public service rather than the private sector, and yet it is suggested that by contracting out to the private sector the degree of corruption has increased. There seems a certain illogicality there.
Mr Wardle: Yes, indeed, possibly because it is easier to detect in the course of the public service. I do not know.
Q52 Chairman: You would not say there is a marked increase because of the recent changes?
Mr Wardle: I am not in a position to say because I have nothing to compare it against.
Q53 Chairman: Sir David, would you have a view on that?
Sir David Calvert-Smith: I think I would agree with that. We are totally governed by what the police choose to give us by way of investigation for us to decide whether there is a prosecution. Unlike Robert, we do not direct investigations. I do not think there has been any increase in the level of prosecutions that we have undertaken over the last few years, but whether that is simply because the iceberg is getting bigger and bigger under the water, and the little tip that we deal with is remaining much the same size, I do not know. I do know that, like Robert, most of the corruption cases with which we deal - certainly those that I have dealt with personally, as an advocate, over the years - have been attached to what is obviously a fraud, and it has often been a toss-up as to whether you charge a conspiracy to defraud or offences of corruption, or both.
Q54 Chairman: In this sort of area of large amounts of money, even medium amounts of money, is fraud more prevalent than corruption, or do the two run together?
Sir David Calvert-Smith: I think they both run together normally. You normally take a bribe, and in taking a bribe, you are actually committing a fraud in any event on your principal.
Mr Wardle: Absolutely. I would agree with that. The purpose of most bribes is to ensure that the fraud can take place. It facilitates; it oils the wheels.
Q55 Chairman: But in terms of the social, criminal seriousness, would you rank fraud higher than corruption, or money-laundering higher than corruption, or corruption higher than similar crimes?
Mr Wardle: It must depend on the nature and the severity of the particular offence. For example, laundering money for terrorists is in a different league than laundering money for, say, fraudsters, so I think you have to look at the circumstances behind it.
Sir David Calvert-Smith: Going back to the days before the sentence for corruption was increased to seven years, there was an oddity. I can remember a number of cases where both fraud and corruption were on the indictment covering effectively the same behaviour, and the defendant who wished to plead guilty to something had a real difficulty. Corruption sounded worse and would probably have a more detrimental effect on his future prospects. On the other hand, the maximum was only two years in those days, whereas he was at large for a far greater penalty if he pleaded guilty to fraud. So I think the moral obloquy is corruption, which sounds worse, and sometimes the penalties can be higher for fraud.
Q56 Chairman: Obviously there is something to aim at in the sphere of corruption. What do you see the new Bill, if adopted as drafted, doing to make it easier to prosecute more successfully?
Mr Wardle: I think the advantage is that it brings together both the public and private aspects of corruption into one offence or series of offences. I think the Bill will be understandable to juries, at least as far as Clauses 1, 2, and 3 are concerned. There may be disadvantages in the wording which explains the meaning of corruption and the like, which I think juries may find quite difficult. Otherwise, I think it is a helpful Bill overall.
Q57 Lord Waddington: Surely, one could bring together private and public corruption without going down the route which the draftsmen of this proposed Bill have gone. Surely, there is a real danger of the sheer complications of this form of legislation leading to fewer convictions rather than more.
Sir David Calvert-Smith: I do think that the clauses beyond 1-3 are extremely difficult to follow. As a fan myself of a criminal code which the public can understand, this Act seems to me to fall short of the clear, comprehensive statement of the law that one would like. On the other hand, it is an extremely complex area because as soon as you try to define corruption in one sense, you find that you have included behaviour which people find perfectly acceptable, and you then move to another one and find you have excluded by mistake behaviour which people find unacceptable. I have great sympathy with the draftsmen, but it is very, very complex, and I do believe that unless the judges are able, perhaps by model directions from the Judicial Studies Board and the like, to sum these cases up in ways which are more comprehensible than the legislation on its face is, there will be real problems.
Q58 Dr Turner: Can you suggest ways in which the drafting of this legislation could be improved to make your job easier in terms of bringing successful prosecutions?
Sir David Calvert-Smith: I am sure it would be easier for prosecutors were we to focus on the passing of the bribe rather than on the agent/principal relationship. It is easier, I would say, for ordinary folk to understand that when the money changes hands, that is when the offence is committed, rather than in the breach of trust between the agent and his or her principal. So from a prosecutor's point of view, and thinking back to my days as an advocate, I would find it easier to present to a jury in those terms. On the other hand, it is perfectly clear, both to those who commission the draftsmen and to the draftsmen, that did not necessarily cover the full ambit of the offence that they wished to cover, and that is simply a matter of policy and not for me to comment on.
Q59 Chairman: What I am not sure about is whether the relatively small number of prosecutions for corruption is due to the inherent difficulties of establishing corruption or whether it is due to defects in the drafting of the present legislation. Are you deterred by the present legislation from prosecuting?
Mr Wardle: No, I do not think we are. I think the small number of prosecutions is because of the relatively small number of detections of the offence because it is a difficult offence to detect, and normally will only be detected if there is some sort of investigation, say by the company which has suffered at the hands of one of its employees when they discover that he has been taking bribes, or, perhaps more frequently, if the company were to go into liquidation and the receiver or the liquidator is able to find out what has happened. One of the other things about the small number of prosecutions for corruption which is worth pointing out is that I think that if there are easier offences to prove, perhaps more serious offences, surrounding the fraud generally, then prosecutors, and indeed investigators, will tend to go for those. I think it is worthwhile perhaps comparing this Bill with the draft Bill published by the Law Commission in its Commission Report 276 on the general offence of fraud. For example, in clause 4 of that draft there is the proposed offence of fraud by abuse of position, which in a lot of cases I think might encompass the facts of corruption.
Q60 Chairman: One thing which is going to be very important for the Committee to consider is to what extent has the draft Bill made it easier to prosecute once you have detected. Is the form of the present Bill going to make it more difficult, to use Sir David's expression, for judges to sum up to juries? Is it going to be more difficult for you to be sure that what has happened falls within the definition of corruption, or will it make it less so?
Mr Wardle: I think it will make it different. Whether it is going to make it easier or more difficult remains to be seen in the way that judges are able to sum these cases up to juries, depending on the evidence that we are able to put before the courts.
Q61 Chairman: All right. The Bill came into force this morning, and you have to decide today whether to prosecute somebody for corruption. Are you happier today than you would have been yesterday, or less happy today than you would have been yesterday?
Mr Wardle: Probably equally unhappy.
Q62 Mr Stinchcombe: Would you be happier if the clauses defining the meaning of the word "corruption" were made simpler?
Mr Wardle: Yes, I think so.
Sir David Calvert-Smith: So would I.
Q63 Chairman: One thing which was raised yesterday, I think by Lord Waddington, was the question of dishonesty. The word "dishonesty" does not strike you in the Bill except by its absence. Should there be some reference here to dishonesty?
Mr Wardle: I think that the Law Commission consultation paper concluded that corruption was not necessarily an offence of dishonesty, although in our cases I think very often, if not always, dishonesty is present. In practical terms, I think juries are very unwilling to convict unless they see some sort of dishonesty, or at least moral turpitude that they can really get a grip on in the way that people have behaved. Very few of the cases that we would prosecute would not involve dishonesty.
Q64 Lord Waddington: Did not the Law Commission itself say - I am looking at paragraph 5.128 - that corruption is usually, perhaps always, dishonest in the ordinary sense of the word? All they were doing was drawing a distinction between the general meaning of dishonesty on the one hand, and specific offences of dishonesty, where there is an intention to deprive people of property, on the other. Actually, would not one obvious advantage flow from importing the concept of dishonesty? Take, for instance, this matter of facilitation payments. My understanding is that under the Bill as at present drafted, if a person were to make a payment to another person to get his legal rights, with no dishonest intent but purely because he had to nudge a fellow to actually get that to which he was entitled, that would be criminal. Is that not a sheer nonsense, that we should start off with a Bill which stigmatises as criminal something which ordinary people know is not morally wrong? The way of getting round that might be to import the question of dishonesty, do you not think, or perhaps even what the CBI thought might do the trick; they talk of importing the word "improper" into the definition? What do you think of all that?
Mr Wardle: In practical terms, I think persuading the police to use their resources to investigate such an allegation would be quite difficult. I do not think they would, and we certainly would not. Then there is the question of prosecutorial discretion; it would rarely be in the public interest to prosecute in such cases even though the offence might technically be made out.
Lord Waddington: I am sorry to interrupt you, but I think there is a real point of principle here. We are going to talk later about whether the Attorney should give his consent, but you should not have a device like the Attorney's consent as a longstop to prevent a prosecution for something which should never be prosecuted anyhow because it is not wrong. Surely there is something seriously wrong with a Bill if it stigmatises as criminal something which should not be criminal, and it is not sufficient to say, "Oh, well, if we are sensible people, we will never prosecute them for it."
Q65 Chairman: Are you saying that to include dishonesty might exclude certain cases which ought to be prosecuted as falling within corruption?
Mr Wardle: I suspect that is the case, although I cannot for the moment think of any examples from my work with the Serious Fraud Office, because we are of course dealing with fraud and not necessarily other issues. Obviously, in the public sector you would not necessarily say that this was fraud in the way you would corrupt a public servant.
Q66 Chairman: Another suggestion made is that instead of using the word "dishonestly" you might qualify "advantage" by saying "obtained or offered an improper advantage." Would that make it better or worse?
Mr Wardle: This is off the top of my head, but I think from the point of view of directing a jury, that probably would make it better, because you would say to the jury, "It is your decision whether that is improper", or "dishonest", or whichever word you use, but it is not something that I have really thought about with great care.
Sir David Calvert-Smith: I think this is quite a difficult debate, because dishonesty as currently defined by the courts and explained to juries has a particular definition and "corruptly" likewise at the moment under the Act. Basically, not to be too technical about it, it is what a jury thinks is dishonest and what a jury thinks is corrupt, just as gross negligence in manslaughter is what a jury thinks is grossly negligent, using their own knowledge of the English language. It really depends what you mean when saying "Would it be better to put 'dishonestly' in rather than 'corrupt'?" because it is what the tribunal of fact actually decides in their own minds is either dishonest or corrupt. Like Robert, it is hard to imagine cases which we prosecute in which it could not be said that there was an element of dishonesty, but when one moves to the sort of behaviour which is probably better characterised as misuse of public office or some form of really outrageous behaviour as a public servant, then you are moving away from dishonesty into another kind of concept, some of which would be caught by this new Corruption Bill, I believe. So if the legislature decides it wants to include that sort of behaviour, I think dishonesty might limit the scope of the Bill beyond what was intended.
Q67 Mr Stinchcombe: Why do you need a definition of "corruptly" at all in that case? Why can you not just put the word "corruptly" in in Clauses 1, 2 and 3 and whichever other offences you want to create, and leave it to the jury to decide?
Sir David Calvert-Smith: That is what happens at the moment. Obviously you could, because we get on to some extent with the jury being told "'Corruptly' is an ordinary English word. Get on and decide the case."
Q68 Chairman: There is a recent decision of the Judicial Committee which reaffirms the definition of "dishonestly" - I am sure you are very familiar with it. Does that cause difficulties in criminal law?
Sir David Calvert-Smith: I do not believe that the Ghosh definition, which has been reaffirmed, that conduct is dishonest if the jury believes that it falls below the standards of honesty of a reasonable person and the defendant knew that it did so, is difficult at all. It is bound to lead to inconsistency, because one jury may take a different view of the same conduct from another, but that is a price that, I would have thought, is probably worth paying.
Mr Wardle: I would certainly agree with that.
Q69 Chairman: As a phrase to apply, it is not difficult, but people are being invited to form their own assessment of what society will tolerate. Does that work in the context of corruption?
Sir David Calvert-Smith: I believe it would. You know it when you see it - corruption I mean.
Q70 Chairman: Let us get away from "dishonesty" and "improper." Are there other definitions or aspects of the Bill which amount to definitions which you think are defective or that you would like to change, assuming we are going to have an overriding offence, not a specific, precise definition? Are there passages where you think "What on earth does that mean?"
Sir David Calvert-Smith: We have made our position clear that we find the (a)s, (b)s and the (c)s in Clause 12 quite difficult, or would expect juries to find them difficult, but I think I have made that point already.
Q71 Chairman: Could you explain what you see as the difficulties there?
Sir David Calvert-Smith: The difficulty seems to me to be that it focuses on the relationship between the agent and the principal and not on the relationship between the briber and the bribee. I just think that that would be a difficult concept for jurors. No doubt if it is well explained, they will get the point and there will not be a problem, but I just think that is more difficult to understand. There is one other aspect, which is Clause 7, where a private principal's consent means that there is no offence, which does not apply in the public sector, but, as the Bill makes clear, there are a number of people now who are both private and public, and I can see that there might be a difficulty as to whether you actually qualify for the Clause 7 or not because your functions may span both private and public at the same time, which is, as I understand it, one of the motivations for this new Bill.
Q72 Lord Campbell-Savours: Can I take you back to what is a fairly elementary question really: how important is it, in your view, sitting there in the role you have, that a jury does fully and completely understand the nature of an offence that they are trying?
Sir David Calvert-Smith: It is absolutely essential.
Q73 Lord Campbell-Savours: So if it could be shown that they would not understand it, then the law, as far as you are concerned, is an ass. Is that correct?
Sir David Calvert-Smith: That may be. It is undesirable.
Q74 Lord Campbell-Savours: Would you go so far as to say that?
Sir David Calvert-Smith: I do not believe that it would ever be beyond the wit of judges to take the Act, and reduce it to sentences which are clear and comprehensible, so that the jury are asked certain questions which they understand as to whether they are sure that X has been proved or Y has been proved, rather than giving them the unexpurgated text of the Act of Parliament, which is very rarely done because most Acts of Parliament are quite hard to follow for lay people. But if it were impossible, then obviously it would be a travesty, because you could never be sure that the right verdict had been entered.
Q75 Lord Campbell-Savours: Are there conditions in which you think that the jury would not understand at all; the members of the jury would not understand the nature of the offence? If you think they might well be in that position, I think you should say so, because you have said that you think it is important that they do understand it.
Sir David Calvert-Smith: I do not believe that it would be impossible, even though this Act is hard to follow on its face, for an individual case and its facts to be reduced to a series of quite simple questions. I do not think it would be impossible. What I have said is, if I were a member of the public and I wanted to know what the law of corruption was in my country, I would find it jolly difficult.
Q76 Lord Campbell-Savours: I am sure there are some judges who are capable of explaining things very simply, but in your experience, are there judges who in these conditions may well not be able to explain it simply, in a way that jurors would understand?
Sir David Calvert-Smith: The answer to that is undoubtedly, yes, but there is the Judicial Studies Board which produces good model directions, and hopefully if they are followed by recorders and crown court judges, they are comprehensible.
Chairman: Judges in the lower courts sometimes say it is only when the House of Lords gets at it that it becomes confused.
Q77 Mr Garnier: There is something in that, if I may say so. May I ask the Director whether he would agree that it is not essential that statute law should be complicated, and that it is preferable that it should be in plain English and easily understood, not just by lawyers but by lay people? Secondly, would you agree with me that it is not desirable that the Judicial Studies Board should have to produce a lengthy model summing-up which reinterprets a piece of legislation which ought to be readily understandable on its face, and that anybody, be they a lay magistrate - because this is an offence which will be triable either way - or a recorder, who may be a civil practitioner and not a specialist in the criminal law, or an experienced judge at the Old Bailey should be able, in very simple terms, without moving away from the essential points of the offence, to explain to a jury the essential ingredients that they must consider in order to find the case proved? I wonder whether your Department has produced or thought of, in addition to to the material which you have supplied to the Committee, a model Bill which would fit the purposes of the modern criminal jurisdiction.
Sir David Calvert-Smith: The answer to all the questions I think you asked is yes, I agree; it should be simple if at all possible for everybody to understand it, and for any judge to be able, without recourse to assistance from the JSB, to sum a case up. On the other hand, simplifying it may well exclude conduct which Parliament feels should be punishable or include conduct which Parliament thinks should not be, and that, I suspect, is why we have got to where we are. Therefore, it is perhaps a bit presumptuous of a mere prosecutor to say "Don't pass a law because it is too difficult" if that means that the intention of Parliament is then thwarted. To your last question, historically - and I think this goes for Robert as well - we are not a Department which drafts legislation and we traditionally have not had the facility, nor indeed has anybody ever asked us to, so the answer is no, we have not come up with an alternative, because it would be wrong for us to usurp Parliament.
Chairman: That is why I asked the question the other way, as to which of this you would like to change. You have something to work on.
Q78 Mr Garnier: Sir David is not a mere prosecutor; he is the Director of Public Prosecutions, and I would have hoped that, as the Head of that Department, he might be able to assist us. I do not want to place you in an embarrassing position, but it just seems to me that if the Home Office has not asked you for your official view about how the law of corruption should be framed in order to make your life as the senior prosecutor of the state to be advanced, there is a lacuna which out perhaps to be filled.
Sir David Calvert-Smith: To be fair, of course we have been asked for our comments throughout the process on how the legislation would be drafted, and we have sent in comments from time to time, including, of course, the comments we have sent in to this Committee. I am not complaining about that in the slightest, but we are not policy makers; we are prosecutors.
Q79 Chairman: Let us take it in very practical terms. Would you prefer to see the definition of corruption and other offences all spelt out very precisely in the Bill covering these different offences rather than to have the sort of rather global, general crime which is being attempted?
Sir David Calvert-Smith: I think we were marginally in favour of the more global approach, absent the single fraud offence and the other offences proposed under that legislation, which we do not know yet whether they are going to be legislated.
Q80 Lord Waddington: Is there not a third alternative which we should explore? You said that there could be dangers about importing the concept of dishonesty, but we are still left with a situation where this Bill stigmatises as criminal conduct which you, I think, are conceding is not morally wrong and should not be criminal. Another way of getting round that problem is to follow the theme of a general prohibition but then have specific exceptions. Surely you could eliminate a lot of the nonsenses by a few well spelt out exceptions, like, for instance, normal and reasonable and moderate corporate hospitality; like, for instance, dealing with facilitation payments which are made only in order to gain your legal rights, and without any wish to corrupt the person to whom you are giving the money. Is that a way forward, that we could spell out a few exceptions?
Mr Wardle: It is certainly a possible way forward. Our experience is that if you do put in such specific defences, then they will be pushed to the limit, and far beyond the limit, and you end up having an argument not really about what the problem is all about, which is paying people bribes, corrupt payments, in order to get some advantage, but you have an argument about what is right at the margin, when really I think it should be for the jurors to say, "We stigmatise this conduct because we think it is morally unacceptable that people give and take bribes or act dishonestly."
The Committee suspended from 2.40 pm to 2.50 pm for a division in the House of Commons
Q81 Chairman: I would like to ask about the parliamentary position and also about the role of the Attorney General. Some people feel very strongly that the need for the Attorney General to give his consent to prosecutions is a very necessary safeguard. Would it be desirable to make the consent come from the Director of Public Prosecutions rather than the Attorney?
Sir David Calvert-Smith: Our submission in the past, certainly our submission to the Law Commission, was that it would be better that the public prosecutor be the filter for malicious private prosecutions than the Attorney General, who is, in the public eyes at least, a politician.
Q82 Lord Waddington: But we are told that one of the disadvantages of that is that the DPP's responsibilities can be delegated to the most humble prosecuting officer, so in fact, it would not be a safeguard at all.
Sir David Calvert-Smith: I hope it would, in that all the other DPP's consents to a prosecution, which are probably into three figures, are theoretically exercisable by any crown prosecutor. That is because the code of crown prosecutors applies to me as to the humblest prosecutor. There are certain offences the level of which we within the service have fixed higher than every crown prosecutor, because of the particular sensitivities of the case, probably because there are not many of them every year and so on, so it is possible for a smaller group of prosecutors to deal with the business, so to speak, but I do not accept that for any crown prosecutor to give the DPP's consent is no sort of filter for the kind of malicious prosecution which one can imagine people taking out around about election time or whatever it is, just to queer the pitch of their opponent in some campaign.
Q83 Chairman: Could you deal with that kind of prosecution by the Attorney rather than requiring consent in advance? Would that be practical or not?
Sir David Calvert-Smith: You could. I believe that the stigma of it being announced that somebody has been charged with something is such that, if there is absolutely no basis and it is in fact a malicious or vexatious prosecution, it should not be allowed to happen at all, rather than it being put right later. Therefore I strongly support a lead or consent provision, and I would not object to the Attorney having it. It is simply that it occurred to us at the CPS that, particularly if we are going to move on to the question of the parliamentary privilege issue and possible prosecution of politicians, the Attorney's lead might be perceived by the public as a bit odd depending on which party it was the defendant belonged to.
Q84 Chairman: But in your view, it would be practicable as well as desirable that it should be the Director who should give the consent rather than the Attorney?
Sir David Calvert-Smith: On balance, yes.
Q85 Chairman: You could perhaps avoid the difficulty which Lord Waddington rightly raised about specifically providing that the decision had to be taken either by the Director per se or by a named deputy or alternate.
Sir David Calvert-Smith: Exactly.
Q86 Baroness Whitaker: If the mandate of the Serious Fraud Office were widened, would there be any objection to consent being required from the Director of the Serious Fraud Office?
Mr Wardle: No, I do not see any difficulty there. We have a relatively small number of cases, and I know each one to a greater or lesser extent. As far as our cases are concerned, very often the consent of the Attorney has to be obtained but one wonders why. It is not that sort of case where there is a risk of malicious private prosecutions, particularly in the private and semi-private area. It is not something that troubles me either way. I would be quite happy for the Attorney to continue giving his consent if he wants to do so, and the House felt that was proper. Equally, I would be quite happy for a scheme to be put in place whereby it was made by myself personally in Serious Fraud Office cases or a nominated deputy. An alternative might be to follow the example in the Enterprise Act, where prosecutions may only be brought, for example, by either the Director or by myself or by a Secretary of State.
Q87 Baroness Whitaker: That is a very interesting example, because if your mandate were broadened, it is your organisation which would have the expertise, including going overseas, which we heard the other day would control the problem. So you would be in a position to use your discretion as to when to prosecute, with perhaps more background, better information, than the more generalised services.
Mr Wardle: Yes, and the advantage of course is in that we direct and carry out the investigations ourselves. We would be able to say, "No, we will stop this now because the evidence is not coming along and we will never be able to give consent" perhaps at an earlier stage than the police were able to do, and thereby save the expenditure of resources, money and the like.
Q88 Baroness Whitaker: Might you be in a position to judge the public interest in a prosecution?
Mr Wardle: I think so, yes. I think we have to do that, obviously, when we decide to prosecute, and increasingly we have to do that when we decide whether to take a case on, because if it is not going to be in te public interest to prosecute, for whatever reason, then we do not want to spend many tens or hundreds, or even millions of pounds, investigating something to no end.
Chairman: Let us turn to the question of Parliament. There are obviously some very serious issues which need to be raised in relation to possible investigations and prosecutions of Members of Parliament.
Q89 Lord Campbell-Savours: Can I ask you, Sir David, what do you actually think of the process of consultation with the Parliamentary Commissioner for Standards?
Sir David Calvert-Smith: About?
Q90 Lord Campbell-Savours: In the case of prosecution of Members of Parliament.
Sir David Calvert-Smith: So that at the stage that we are about to make a decision, we would be required to consult the Parliamentary Commissioner?
Q91 Chairman: Required by what?
Sir David Calvert-Smith: I am asking.
Q92 Lord Campbell-Savours: I am asking what you think of the proposition of a process of consultation.
Sir David Calvert-Smith: I would have imagined that, were Clause 12 to be enacted, a protocol would have to be drafted in which such a consultation would be mandatory.
Q93 Chairman: That would have to be in the Bill specifically if it were made mandatory?
Sir David Calvert-Smith: There are a number of fields in which we have protocols with various bodies which we regard as mandatory and which are public, and which therefore if we do not comply with we will be in trouble in court, and there are a number of others where the statute has required - for instance, the Code for Crown Prosecutors - for us to produce some document or other against which we agree to be measured. Whether it was in the statute or whether it was by voluntary negotiation between the Commissioner and ourselves, I am quite sure, one way or another, there would have to be a chain of communication.
Q94 Lord Campbell-Savours: You would be perfectly happy with that?
Sir David Calvert-Smith: Yes.
Q95 Chairman: Do you think it could be done without it being put in the Bill?
Sir David Calvert-Smith: If it were not done in the Bill, we would do it, so I suppose the answer is yes.
Q96 Lord Campbell-Savours: We were told by the police last week - they were talking about how they would investigate an allegation of corruption against a Member of Parliament - that it would include proactive operations, which we conclude to be covert and intrusive surveillance, perhaps use of technical equipment, interviews under caution, but with a focus on evidence which could actually be used in court. Do you think that is reasonable in relation to elected Members of Parliament?
Sir David Calvert-Smith: I think it is reasonable. I suppose that depends on the scale of the allegation that you are considering. If it really is, to go abroad for a moment, a Lockheed situation, as in Japan, I would think the public would want every possible means available to an investigator to detect it and to bring it to justice. So I would not want to rule out any means of investigation simply because it was an investigation of an MP.
Q97 Lord Campbell-Savours: You would have no objection to that happening without you knowing that that was going on? It is the police that would be carrying it out.
Sir David Calvert-Smith: Yes. This is of course where Robert's function and mine differ. Robert rightly points out in his favour that he would have control over that sort of investigation if it were an SFO case, whereas currently, albeit we are now entering into protocols, to go back to your previous question, with the police about pre-charge advice and circumstances in which the police undertake to come to us for advice before they do various things, the constitutional position is that the police can now do what they wish.
Q98 Lord Campbell-Savours: So Robert would have no trouble doing that at all.
Mr Wardle: Let me put it this way. If I investigate, before I can investigate, I have to have reasonable grounds for thinking that an offence involving serious or complex fraud has been committed, and if those grounds suggested that it had been committed by an elected Member, I would have no difficulty, using all the legitimate, legal, investigative tools at my disposal, including using the powers of interview under s.2 of the Criminal Justice Act 1987, which require people to answer questions on pain of prosecution; I would have no difficulty about using intrusive surveillance if that were appropriate under the Regulation of Investigatory Powers Act, or any other legal method of obtaining evidence.
Q99 Lord Campbell-Savours: I am sorry to press this, but I am sure many people in the House of Commons will be interested in your comments. You do not feel that that could in any way be abused by perhaps an individual officer who might veer further than perhaps the precise remit in that particular inquiry? We are dealing with people elected to Parliament.
Mr Wardle: There is always that risk. Certainly as far as our cases are concerned, they are controlled by lawyers at very senior level who report to me, and I act under the superintendence of the Attorney. If an elected Member were involved, I think we would take every precaution, and we would discuss this with the police and various security or intelligence services before taking any such measure.
Q100 Lord Campbell-Savours: How central is Clause 12, that being the clause that essentially we are discussing, Proceedings in Parliament, to the prosecution of a corruption? What scenarios have you considered? Could you perhaps give us an example where an offence would be committed but a prosecution perhaps would fail without Clause 12?
Sir David Calvert-Smith: First of all, our experience is very limited. In my memory, only one MP has been prosecuted for bribery during my career at the bar - unsuccessfully.
Q101 Lord Campbell-Savours: Which one was that?
Sir David Calvert-Smith: It was the Member for Ealing, Harry Greenway. It was before either of our times, I should say. I can imagine that it would be very important in order to secure a conviction of a corrupt elected Member to be able to adduce in evidence things that he or she had said, either in a Committee like this or in the House itself, as evidence of whatever the bribe had been intended to achieve. I would have thought it was almost essential - and I believe other common law jurisdictions have found this - that the Bill of Rights has to be abrogated to the extent that to prove corruption offences against elected members one would have to breach parliamentary privilege.
Q102 Lord Campbell-Savours: Perhaps the Greenway case makes the point because right across the spectrum in here, even amongst those of us who were hunting with the hounds, we could never understand why that prosecution had been brought. What I worry is whether we might find ourselves entering into prosecutions which we should not. I do not know if you are in a position to comment, but you can reflect on the case now.
Sir David Calvert-Smith: I simply cannot remember the facts of that case. I was not involved as counsel. I just remember reading about it in the newspaper. There is always going to be a risk, and clearly MPs, who are public figures, are at greater risk probably than other members of the public of false allegations and attempts to belittle them, reduce their credibility and so on, from malicious people. So clearly there are risks. One of the risks can be overcome, I would say, by a consent provision, whether by the law officers or by the two of us, and the risk of over-zealous police officers on a crusade, which I think is your next point, would be very substantially reduced in Robert's case because he would be directing the investigation and would therefore have complete control over such officer. In my case I have to concede that the police have operational responsibility. They take advice, but they can take or leave that advice; I cannot direct them. So I accept that there is a potential risk there.
Q103 Baroness Whitaker: It sounds as if there is less risk if the Serious Fraud Office has the responsibility than if the DPP has the responsibility.
Mr Wardle: I think that is probably right, but that would only apply to an offence involving seriously complex fraud. In the case of a Member of Parliament where Clause 12 might be brought into play, it is probably unlikely that we would be looking at that. I do not know. I suppose there are circumstances where it could apply.
Q104 Chairman: In this area perhaps one of the most important questions is whether Clause 12 goes too far. Even assuming it is necessary to provide an Act with something like Clause 12, is it too wide? Could we get away with a narrower provision which would reduce the anxiety which some people would certainly feel?
Mr Wardle: It applies, of course, only to an offence of corruption under the Bill.
Q105 Chairman: The Clerk of the House in his evidence, for example, has said that you could draft this more narrowly. Do you have any comment on that?
Sir David Calvert-Smith: It certainly could be drafted more narrowly. It could, for instance, be limited to cases where the defendant is the elected representative, because here this could be evidence in a quite different case against somebody who is not elected, and that would be one limitation that could be placed on it. Obviously it could be limited more than it currently is. It is quite a wide provision at the moment.
Q106 Mr Stinchcombe: Do you think it should be a criminal offence for a Member of Parliament, for example, to solicit payment to ask questions or make speeches or vote in a particular way? If it should be a criminal offence, do you need to have something like Clause 12 in the Bill in order to prosecute for it?
Sir David Calvert-Smith: Yes, I do.
Lord Waddington: I do not quite understand that.
Q107 Lord Campbell-Savours: Was that an answer to the first or the second question?
Sir David Calvert-Smith: It was yes and yes, but can I go back to something that passed between some of us while others were away, and that is that I cannot conceive of us prosecuting a case - I am sure we have never done so before, or almost sure - unless this is done in secret. If there is not secrecy, then it is hard to see how an offence is corrupt. If an MP were to stand up and say, "I have asked for..." then the likelihood of a jury convicting that MP of corruption, I would have thought, would be small, whereas if it turns out later that the MP has asked a question and secretly has asked for, then I would have thought most juries would probably think that was corrupt.
Q108 Mr Garnier: Except that publicity by itself is not necessarily a guard against corrupt behaviour. If you were a very clever person, you would stand up and say, "I am available for hire," and you could pocket huge sums of money to vote in a particular way, and because you have made yourself publicly clear about this, no consent would ever be given for prosecution. It may be that we are having an argument about the division between the responsibilities of Parliament for its own procedures and the responsibility of the criminal law to deal with criminals. I do think - and I will ask you whether you agree - that we need to pay quite close attention to the advice of Sir William Mackay in his memorandum, because we are not here simply worrying about the prosecution of individual human beings who happen to be Members of Parliament but we are here as trustees of the privileges of Parliament. Privilege in the parliamentary sense is a much misunderstood word, as it is throughout the entire civil and criminal jurisdiction, and we are not simply trying to protect ourselves, are we, against being prosecuted for misconduct? We are seeking to protect the freedom of speech of Members of Parliament, of either House, to represent the people of this country fearlessly. If there is any inhibition put upon us either by your officers or by the criminal law generally, our jobs as Members of the House of Lords or Members of the House of Commons are inhibited. I think we need to be quite careful - and I ask you whether you agree with me - not out of a sense of political correctness or any other perfectly natural feeling, to place obstacles in the way of Members of either House carrying out their proper duties.
Mr Wardle: I am sure that is right, and as far as the competing interests are concerned, I am sure this Committee will give them very careful consideration, but I think that David is right; I think there may be cases where there will be no prosecution if Clause 12, perhaps in a restricted form, is not enacted.
Q109 Mr Garnier: Could I give you an example? Mr Robert Maxwell is now dead so we do not need to worry about his reputation, if ever we did, but if he had been stealing from the Daily Mirror Group pension fund but also happened to be a Member of Parliament, I dare say you would have thought it proper to prosecute him had you got the evidence, and simply because he was a Member of Parliament for Buckingham for a particular time would have been wholly irrelevant to your decision.
Mr Wardle: Absolutely.
Q110 Mr Garnier: But we are not talking about that sort of criminal behaviour, are we? We are talking about where a Member of Parliament, be they in the Lords or in the Commons, conducts himself as a legislator in such a way as to attract moral opprobrium or public criticism verging on crime.
Sir David Calvert-Smith: Is that right? I am not sure that that is the intention of this clause. Suppose Robert Maxwell had said something in the House which supported any allegation that the SFO might have been making against him, and perhaps was a vital element of the case, in that it admitted certain facts, shall we say. Then whoever was prosecuting would want to use the fact of that statement in the House to support our case, and it would look very odd in that sort of case, because whatever he said we have been in Hansard anyway so everybody would have known it, if there were some artificial ban on our using that statement in any prosecution.
Q111 Baroness Whitaker: Should we not be uneasy if our elected Member of Parliament fearlessly advocates particular legislation for which he has taken money with impunity though?
Sir David Calvert-Smith: I agree.
Lord Campbell-Savours: Can I go down the route Mr Garnier has gone down and quote from the memorandum given by the Clerk. You might want to comment on it. He says, "As drafted, Clause 12 goes far wider than that. As already mentioned, it would enable evidence given by a person to a Select Committee to be called in evidence in court in support of a charge of corruption against that person," which is what you were just commenting about. Then it says, "If a Member of Parliament had commented in debate on an individual who was subsequently charged with corruption, that Member's speech would be admissible as evidence under Clause 12 and the Member" - that is to say this other Member, uninvolved - "might be questioned about its meaning and the information on which it was based." It means that I, if I spoke about someone else's actions, might find myself, arising out of a speech if I had been in Parliament, being questioned by you and perhaps even involved in the court.
Mr Garnier: It is going to come more directly on attempts rather than on the actuals. As a Member of Parliament, if one of my constituents offered to pay me a lot of money to do a particular thing, but of course I refused it, is Lord Campbell-Savours saying that that sort of speech would lead to, or could lead to, prosecution of a member of the public, based upon a remark made in the Chamber of the Commons or the Lords?
Q112 Lord Campbell-Savours: Yes, as I understand it and that would mean you could be called on the basis of what you said in Parliament about that because of evidence in relation to that other person, if that other person was a Member of Parliament.
Sir David Calvert-Smith: That is extremely doubtful. The way it is phrased, as you have just quoted, I cannot see how that would ever be admissible in a criminal trial. Saying things about people is not evidence. Facts are evidence. I think that particular bit actually over-states the difficulty. If a Member of Parliament had commented in a debate on an individual, that is highly likely to be evidence relevant to the commission of a criminal offence.
Q113 Lord Campbell-Savours: Perhaps I could finish the sentence. He expresses concern and he says: "In my view, this" ---that is what I have just described --- "amounts to far more than a minimal encroachment on territory safeguarded by Article 9, which the Joint Committee on Parliamentary Privilege originally envisaged". He is obviously very perturbed by the possibility of that happening.
Sir David Calvert-Smith: All I would say is that, as phrased, I do not believe that would be a concern because I do not believe a speech by an individual who had no personal knowledge of the facts, but merely commented in debate, could ever be admissible in a criminal trial.
Mr Wardle: I would agree with that and, having looked at it, I assumed that one was talking about statements made by a person would only be admissible against him or her in any criminal proceedings; otherwise, I do not quite see how they could be got in.
Q114 Mr Garnier: Am I being, as often, obtuse here? If I stand up in the House of Commons and say, "Mr Smith came to me in my constituency surgery and offered me £1 million in order to behave in a particular way", which would be adverse to the public interest, would not the fact that I had said that amount to material which ---
Sir David Calvert-Smith: We would then send a body round to see you at home and say, "We are interested to see what you said in Parliament yesterday. Is that true? Will you please sign a statement saying it is true?" If you said, "I refuse to co-operate", then we could not use that statement in Parliament in any shape or form; it simply would not be admissible. You would have to give the evidence of what Mr Smith had said to you in your surgery in court, obviously.
Q115 Mr Garnier: It would lead you on to a train of inquiry?
Sir David Calvert-Smith: Yes.
Mr Wardle: That is the case now.
Sir David Calvert-Smith: That is what happens now. If you were to say such a thing, I am sure you would have a visit.
Mr Garnier: I look forward to it!
Chairman: We will not go through much of this material with you because of the time. We will come back perhaps to some of these questions. Members have a number of other question which would in part apply here and also apply more generally. Perhaps we could revert to those.
Q116 Lord Bernstein of Craigwell: There is one point in the CPS submission, which referred to the omission of misuse of public office and trading in influence, and you say that further consideration and consultation is recommended. Do you have any specific ideas on how this can best be included into the Bill and could be enforced?
Sir David Calvert-Smith: The common law offence of misconduct in public office has made a come-back in recent years. Having really not been prosecuted for many, many years, it is now quite common, and its exact scope is still the subject of debate and has not been pronounced upon recently, for instance by the House of Lords. There is at least a possibility that the Court of Appeal, and thereafter perhaps the House of Lords, may be asked to consider the scope of the offence of misconduct in public office. Many jurisdictions, as I understand it, do have a specific offence of that kind in statute. As I said a little earlier, and Robert actually said first, there is a proposal for something that looks very much like statutory misconduct in the proposed fraud legislation, which the Law Commission have come up with on the subject of fraud. Again, it would be simpler for prosecutors, were there such an offence; it would be easier, I believe, for tribunals of fact to understand what it was that was actually being alleged and it would take out of the corruption ambit those cases that Lord Waddington was asking about where perhaps dishonestly is not exactly the right word to describe it but it is somebody who has actually abused their function as a public servant.
Q117 Lord Bernstein of Craigwell: At the moment they are prosecuted under the common law?
Sir David Calvert-Smith: Yes.
Q118 Lord Bernstein of Craigwell: You think it could be made part of a statutory offence?
Sir David Calvert-Smith: Yes. Primarily, in CPS terms, it has been limited to behaviour by police officers which is so far below the standard of what police officers should do in respect of caring for someone that it amounts to misconduct.
Q119 Lord Bernstein of Craigwell: So the problem of making it part of the statute if Parliament requires it?
Sir David Calvert-Smith: That would certainly be a problem, yes.
Q120 Mr MacDougall: You made a point about the Members of Parliament situation. I want to talk about the corruption itself in terms of industry and business and commerce. You know yourself that within America and within Europe the payment of facilities is widely accepted. It is seen as a level at which you can actually pay money to the company for someone who is promoting a product and that is quite acceptable, whereas the International Development Committee rejected that prospect. Do you think that having that kind of level playing surface and that opportunity to say, "This is acceptable; this is not corrupt; this is something that is a means of development" weighs against the fact that this could be seen as some form of corruption? We are not asking the same point. How do you determine what is corrupt and what is not corrupt? Does there not have to be some measurement somewhere weighed against intent and purpose?
Mr Wardle: I think obtaining a level playing field within different countries is always going to be extremely hard to achieve. I think it is quite hard enough doing it within one jurisdiction because you have different interpretations, different views by jurors, as one has now with offences of dishonesty. There has been some work, certainly in the European Union, and I understand elsewhere, to try and level the playing field to some extent but I think we are always going to be in that difficulty. It is not only the level playing field but from our point of view it can make it very difficult obtaining evidence because if you go to these places, you send a letter of request, you describe conduct, and they will come back and say, "Sorry, what is wrong with that? That is not an offence over here". That is always going to be a restraint on the practicalities of us following up some of the cases, the investigations, which we would otherwise like to prosecute. I would agree with you on that.
Sir David Calvert-Smith: Could I say that this is a problem with which I wrestle on the international scene. I am a member of the Committee of the International Association of Prosecutors. Trying to reconcile different standards that various countries have as to what is and is not acceptable in business is virtually impossible. What I am sure of is that there is a body, of which we are a member, which has pretty high standards and feels sometimes unfairly prejudiced by the fact that some other countries do not apply the same standards and therefore may get unfair commercial advantages from time to time. Clearly, those facts would affect a decision as to whether something would be prosecuted or whether it would not in the public interest. But I would hope that we would be trying to make the world a less corrupt place generally, rather than simply descending to the standards of the lowest common denominator.
Q121 Chairman: It is interesting you talk about the International Committee. Looking around, if you could take lock, stock and barrel the corruption legislation of some other state, which would you take?
Sir David Calvert-Smith: I think the best I have seen, and I cannot say I have seen them all ---
Q122 Chairman: Some of them do not have any?
Sir David Calvert-Smith: Exactly. I think the South African code, which is of quite recent origin, is certainly worth a look. I think many of the other Commonwealth countries have remained with our Anti-Corruption Act.
Mr Wardle: I think it is difficult to compare it because you also have to look at the different ways they obtain evidence, the different ways they prove cases in court. It can be a little bit misleading. I think there should be a word of caution about comparing different codes?
Q123 Chairman: Of course we also now have to take into account the Human Rights Act and putting the burden of proof upon the defendant. Are you happy with the notion of evidentiary proof of burden on a defendant is not in violation of the Act? Does that create any problems here, that you cannot put the substantive burden on the defendant, or you may not be able to?
Mr Wardle: I think in practice no. I think that bringing the two elements, the public and the private sector, together and removing presumption in practice would make very little difference. You would still actually have to obtain the evidence; you would have to show the commercial activity which underlies it. I think that, plus the secrecy of hiding that, is usually enough for a jury.
Chairman: Just moving on to something else, the suggestion has been made that perhaps one or two other offences of a specific kind could be and would be included in this Bill.
Q124 Dr Turner: Those holding public office currently are only prosecuted under common law. Do you think there would be any advantage, and what would you have to do, in making misconduct in public office a workable statutory offence in this Bill? Do you think it would be helpful?
Sir David Calvert-Smith: I think it might very well be very helpful. I would have thought it would not be impossible. It would not have all the difficulties and complications surrounding the agent/principal relationship which I think makes this Bill so hard, but it might delay the implementation to go back.
Q125 Dr Turner: That is not our problem. Another thing that is missing from this Bill is trading and influence by officials. How would you think that could be made workable?
Sir David Calvert-Smith: It is a difficult concept for me as a prosecutor. Maybe Robert has a better steer on this. My understanding is that, looking at some of the continental legislation on trading and influence, it would actually be caught, the behaviour that they are attempting to criminalise would be covered almost certainly by the current provisions of the draft Bill.
Q126 Mr Stinchcombe: Is it corruption working to an advantage?
Sir David Calvert-Smith: I have just said so. I am not so concerned about that. For simplicity, I can see great advantage for public servants in having a misconduct offence which was statutory rather than dredged up from the Middle Ages.
Q127 Chairman: Are these two offences included in the South Africa Act?
Sir David Calvert-Smith: I am sorry, my Lord, I do not know. I cannot remember offhand.
Q128 Chairman: Perhaps you could very briefly indicate why you think the South Africa Act has features which attract you?
Sir David Calvert-Smith: Could I perhaps come back on this when I have it in front of me, which I am afraid I have not. All I can remember is that at the last but one meeting I remember reading it and thinking, before this was even a draft Bill, that that might be a good model. Perhaps I could send it to the Committee with some comments?
Chairman: That would be very helpful. Perhaps you could let us have a short note saying the reasons for the South Africa Act being attractive and useful. Are there any other offences which members of the Committee feel could be expressly included in ths present Bill? These seem to be the two main ones. In view of the need to rise at 4 o'clock, would you like to give an example of Parliamentary corruption? I think we have dealt with most Parliamentary questions at this stage. The role of the Serious Fraud Office is perhaps something we might just look at in relation to corruption.
Baroness Whitaker: I think I asked quite a lot of that when I asked Mr Wardle if he would give consent. I just wondered if he could have a word about the agent/principal business because I do not think we have covered that. It seems to me that there are three victims.
Chairman: I think we have reached another division. Is this a question which can be answered shortly now? If not, I think perhaps we should do it in writing.
Q129 Baroness Whitaker: That one cannot be answered shortly but the one that can is about the use of the approved code of practice, questions like visitation payments or thresholds or areas where good practice can be defined and go in the Act. Do you think there is any scope for an improved code of practice which would have statutory status?
Mr Wardle: I expect there is. I think many organisations will have their own codes of practice and the only sort of guidance like "this is the minimum level" might be quite helpful but, at the end of the day, the one thing you are saying is, "Do not lie about it. Do not make it secret. Do not take secret payments". I am afraid codes of practice may only say "do not do that".
Baroness Whitaker: I meant one which would be used in a court as prima facie evidence that if you breached ---
Chairman: I am sorry, I am afraid we are going to have to stop. You have Baroness Whitaker's first question. I wonder whether perhaps you could consider that. It will be on the record. Perhaps you would be kind enough to let us have a note in writing as to what you think, in view of the fact there is another division, and we have finished.
Lord Campbell-Savours: Perhaps we could also have it in a non-quorate session as an informal answer as well, so that we have it both ways?
Chairman: Thank you very much, Sir David and Mr Wardle, for coming. We are extremely grateful to you. Do not be surprised if, having heard one or two others on this issue along the line, we come back to you with some written questions. We are very grateful to you.