Taken before the Joint Committee on the Draft Corruption Bill on Tuesday 10 June 2003
Campbell-Savours, L. Mr Mark Oaten
Memorandum submitted by Mr Justice Silber
Examination of Witness
Witness: MR JUSTICE SILBER, examined.
Q599 Chairman: Mr Justice Silber, we are grateful to you for coming, not in your present capacity but as a former member of the Law Commission on the writing of this report.
Mr Justice Silber: Thank you very much for inviting me.
Q600 Chairman: If we ask you questions which appear to indicate some criticism you will understand that they are not personal questions, merely an attempt on our part to understand what this is really all about. You have seen the evidence that we have already had.
Mr Justice Silber: Your secretariat has very kindly sent me a lot of it.
Q601 Chairman: The second paper which you very kindly sent yesterday evening we found very helpful and useful. Can you tell us what is the intention here? Is it to get away from the difficulties in all the earlier legislation which you mention in your paper and which we are very conscious of? Is the intention to smooth out those difficulties or was it rather to start again, to produce a new code of corruption covering cases which the Commission thought ought to be covered which perhaps were not covered?
Mr Justice Silber: It was really aiming to ensure that there was a sensible law of corruption and to learn from mistakes that had been made in the past. It also fitted in with the general policy in codifying law. When it was first suggested that we ought to look at this area I took a number of soundings from lots of bodies to see if they thought it was worthwhile doing so and the clear message that we got back was that there were a number of very serious defects in the law, most of which related to the uncertainty of the present law. Therefore, we decided not only to take it up but the force of the responses that we got meant that we decided that it was proper and appropriate to give it high priority, and that is what we did, and we found that when we produced our consultation paper that provoked a great deal of interest and that again reinforced the view that there had to be some change.
Q602 Chairman: Did you start with a concept that you had to include or should include the principal/agent test in various offences?
Mr Justice Silber: We really started on the basis that we knew relatively little about it. We picked up from people information about the problems that they were having in connection with it and we then decided to see how it would be fair to get a proper balance, so we really started knowing relatively little about it and spending a great deal of time trying to work out ways in which we would get a balance that would be fair. Above all we were very concerned that people ought to be able to have some idea as to whether conduct they were committing would be criminal or not be criminal and the clear message that we got back from everybody was that that was the real problem with the previous law.
Q603 Chairman: Everybody who has come here has virtually told us that they think the object of having a corruption legislation definition of the criminal offence should be to be as clear and as simple as possible while covering everything that should be covered. Some people have rather taken the view that there might have been simpler ways of doing this.
Mr Justice Silber: I have very great sympathy with their views and we tried to produce something that was very simple and it just was not possible to do that. We quickly came to the view with which a lot of people agreed that we had not merely to use a word like "corruptly" or "dishonestly", but had actually to spell out what it meant and, once we did that, that immediately meant that it was complex. I do not pretend that it is possible to produce something which is both fair and comprehensible and also which enables the results of particular forms of conduct to be classified as either criminal corruption or not criminal corruption without having something fairly complex.
Q604 Chairman: You say in your latest paper very firmly, and understandably very firmly, that you think that the appropriate doctrine to define corruption is clear and effective and one of the questions that we have had to consider very seriously is whether 5 and 6 and 7, particularly 5, really do indicate sufficiently it clearly to business men who have got to decide whether they can do things, to judges and juries who have got to apply it and to lawyers advising their clients. On a first reading 5 really is a bit complicated.
Mr Justice Silber: Oh, indeed it is.
Q605 Chairman: May I say that even on a second and third reading I still find it fairly complex.
Mr Justice Silber: I thought you might even have said the 23rd reading. I agree it is but one of the problems if you do want to get something comprehensive is that you run into this form of difficulty. You, much more than I, have had to deal with construing quite a lot of criminal legislation and there are many areas where it is much more complex than this. If you look at drug trafficking, if you even look at the powers of criminal courts, it is more complex than this. If one does take some time, and I agree it is not on the first or second reading, it is possible to look at facts and determine what they come within. I ought to say that I do not take credit for drafting the Bill. We were responsible for formulating the policy. It was parliamentary draftsmen who took it further. Whether or not it could be expressed more clearly is something that I could not comment on.
The Committee suspended from 4.23 pm to 4.36 pm for a division in the House of Commons
Q606 Chairman: If you look at 1, 2, 3 and particularly 5, you ask yourself, what are you trying to get at? What is the vice you are trying to suppress, even without looking at the draft? What were you aiming to penalise?
Mr Justice Silber: People who do not perform their functions or duties properly and are coerced into doing so.
Q607 Chairman: What do you mean by duties?
Mr Justice Silber: Their duties as agents.
Q608 Chairman: I am still puzzled as to why so much emphasis is put on principal and agent because it excludes independent businessmen doing some sort of deal which would in most people's sight be corrupt but they escape from this.
Mr Justice Silber: I would find it easier to answer that question if you were to give me an example.
Q609 Chairman: Why is the reference to "principal" and "agent" so important?
Mr Justice Silber: Because that was our understanding of what, with the extended meaning that it was given, would cover the type of relationship with which one is concerned, because I think the idea of corruption is that people are being given an advantage of some sort in return for not performing their duty.
Q610 Chairman: Duty as an agent, as an employee or any legal duty?
Mr Justice Silber: No. It is interfering with a duty owed by the recipient to a third party.
Q611 Chairman: As agent?
Mr Justice Silber: Yes, as agent in a fairly broad sense. It was thought that that in fact would cover the situations which ought to be criminalised. Obviously, if there were situations outside it which should be criminalised, that is a matter that one would have to examine again, but we postulated a whole series of examples.
Q612 Chairman: Is the idea that this Bill should not cover, or is it that corruption truly understood does not cover, any activities which do not involve principal and agent? The example we were given was of two businessmen. One says to the other, "We are both going to tender for this contract", and one says to the other, "I will give you £100,000 if you do not tender", so the other takes the £100,000 and does not tender. Would that be corrupt or not corrupt? Forget the language of the Bill.
Mr Justice Silber: No, because that is what businessmen are entitled to do and to arrive at and are entitled to reach agreements of that sort. The agreement could also be, "We will give you a contract for something if you do not tender for another contract", and there cannot be anything wrong with that contract because it is -----
Lord Waddington: I am not sure about that. Surely moist people would think that it was pretty shady for one businessman, without telling the person who is putting out a matter for tender, to tell another businessman, "Look: I will slip something on the side for you if you are kind enough not to tender for this contract". Certainly the person who is offering the business is being cheated because he is not having two honest tenders. He is only getting one because somebody is being given a bribe. Is that not surely dishonest?
Q613 Dr Turner: Could I just add to that that this is alleged to be quite a common practice in the engineering industry and it is undoubtedly the kind of behaviour that is described as a cartel and I do not think anyone regards cartels as acceptable, and I think most people would say that there is an element of corruption in it.
Mr Justice Silber: If that is the case then you are moving into the situation of distorting a market and you have to look into it through that particular area because the vice that you complain of, and I can understand that, is distorting the market but that is not what corruption is about. Corruption is actually striking at the duty.
Q614 Lord Waddington: I really only put that in as an opening shot because I thought perhaps you might have been in error in what you said. The really important point which has worried all of us is whether this Bill is as understandable by the ordinary person as might be possible. Surely it is not enough to say that the Bill could be understood by a judge and a judge could give a fairly good steer to a jury as to what are the issues in the case? There is something very funny about a Bill, is there not, when a layman reads it and does not know whether he is going to be stigmatised as a criminal if he does certain acts? I will give you a few examples. Nobody reading this Bill would know whether they were committing a criminal act or not if, for instance, they were to pay a small sum of money to a baggage handler at Heathrow to go behind the carousel and try and extract their bag as quickly as possible because it seems to have got lost in the melée. Nobody would suggest that that was a criminal act and yet it appears to be a criminal act. Then you have got the case of facilitation payments, payments generally by a person in order to hurry up the delivery to him of a service to which he is legally entitled.
Mr Justice Silber: That would not be undermining the relationship between the person who receives the money and their principal, would it, as I understand it?
Q615 Lord Waddington: That is not quite my question. Would an ordinary person reading this Bill know that that was criminal or not any more than they would know whether or not moderate corporate entertainment was criminal or not? They would have to be a genius to understand whether that was criminal or not, would they not?
Mr Justice Silber: Of course legislation should be drafted as clearly as possible. I have not got experience of drafting this and I just do not know if it is possible to draft it more clearly. Obviously, if this Committee made the sorts of points that have been made about the difficulties in understanding, no doubt the draftsman would have to think of a way of dealing with that.
Chairman: We have steered away from what seems to me to be the fundamental question and that is what we are trying to deal with in this Bill. Whether the language is intelligible is a second question. I would like to go back to what the objective is of this legislation.
Lord Campbell-Savours: Can I take you back to the question that was asked by the Chairman? Supposing there were ten companies on that tender list and one company went to all other nine and said, "Do not bid. I will pay you money not to bid". Would that not be corrupt? "Here is a bag of money. Do not bid."
Q616 Lord Carlisle of Bucklow: Did they know?
Mr Justice Silber: I can see the force of that point in that it does present difficulties in relation to it, but that would presuppose that there is some obligation on everybody's part to bid. This project is only looking at interference with relationships and that is why it has been drafted in this way but I can see the force of your point.
Q617 Lord Campbell-Savours: But very often there will be an approved list and the expectation would be of those on the list that they do know and other companies would have been excluded from the list therefore could not know because they perhaps did not meet the criteria.
Mr Justice Silber: That is obviously an additional point to which serious consideration should be given.
Q618 Lord Campbell-Savours: So your answer originally has slightly changed?
Mr Justice Silber: Yes. I do not want to be evasive but I do have the problem that the thought that went into this was all done in 1997.
Q619 Chairman: I understand perfectly well why you want to say that the breach of trust by an agent to principal might or can amount to corruption. What I am still puzzled about is why that is the only situation where you have corruption. Disloyalty can occur between two people who each have a loyalty outside the agent/principal relationship. Why not include that?
Mr Justice Silber: There is no immediate reason why it should not be covered.
Q620 Chairman: I do not know; we are still exploring this, but would that mean that you could have a wider but simpler definition which would pin itself to disloyalty, not just any old breach of duty but breach of a relationship which amounted to corruption? Or would that be going much too wide?
Mr Justice Silber: I think in that case you are reaching into an area of having to work out what obligation is owed between the recipient and the donor and that immediately raises quite difficult points as to what their duties are going to be. In the situation that we were considering we were dealing with cases where there was a pre-existing duty and a pre-existing relationship.
Q621 Baroness Whitaker: If I can just explore a little bit your focus on disloyalty as the thing which has to be prohibited, is it not the case that the person who might really be most cheated of all is the end user, either in Lord Campbell-Savours' tender where the end user is, say, the inhabitant of the resulting building, or somebody else who is cheated of what they should expect from a transaction, because two people have privately connived to make money out of it and to rig it? In your fundamental concept of disloyalty between the agent and the principal how can one cover the cheating of the end user?
Mr Justice Silber: In most of the corruption cases one would actually be dealing with the cheating of the end user because the cases that we came across that were being dealt with were cases usually of corruption of local authority officials to divert contracts to a particular company who would obviously be tendering at a less beneficial price, so to that extent almost invariably they would be. The way we thought to look at it was by focusing on the disloyalty to the relationship.
Q622 Baroness Whitaker: So you are saying that the harm to the end user is incidentally covered in your concept of disloyalty?
Mr Justice Silber: Yes.
Q623 Baroness Whitaker: But it is not the primary target?
Mr Justice Silber: No. It would be a serious aggravating factor in that case and there can be a number of cases of corruption where in fact the end user is not prejudiced at all, where money is paid by a contractor to an individual to get a contract which they would have got in any event, so the only loser in that case is the paying party. I would suggest that it is an aggravating factor if the end user is penalised but it should not be the litmus test for liability.
Q624 Chairman: Corruption could not simply be cheating?
Mr Justice Silber: No.
Q625 Dr Turner: If there were a situation, which I am quite sure does happen, where you have got a systematic cartel operating by contractors who are bidding for public service contracts and therefore the prices of the tender are artificially inflated, the public is, if you like, the end customer and the public purse is being cheated. Is that or is that not corruption?
Mr Justice Silber: We are getting very close to the difference between corruption and misuse of public office. I presume it is public officials you are talking about.
Dr Turner: Yes, but let us assume for the moment that the public officials are blissfully unaware of this. They are just getting the tender prices in but they are getting them not knowing that there is a certain amount of rigging going on between contractors.
Q626 Lord Carlisle of Bucklow: Is the emphasis that you put on principal and agent partly because one has always looked upon corruption rather in the public sector where the person being corrupted is invariably an agent to the public rather than the private sector and that this Bill is now bringing the private sector and the public sector together and has still retained principal and agent centrally to the Bill?
Mr Justice Silber: I think it really goes back to the point that the purpose of these sorts of corruption was the conferring of advantages in breach of somebody's obligation, I would say in a layman's sense a general fiduciary obligation that is owed, and that was the approach that we took to what corruption should be and interfering with that relationship. The point that has been put to me about the tenders and so forth raises the question about how you construe what the obligation is which is being interfered with and once you move away from interfering with an obligation of a fiduciary nature it does get very difficult to know exactly where that stops.
Q627 Lord Carlisle of Bucklow: The language of principal and agent does not fit so easily in the private sector, does it?
Mr Justice Silber: What could be done would be to make it clearer as to what the agent is. I cannot quite recollect it but, certainly in the Law Commission proposal there was a meaning of what is meant by "agent" and "principal".
Q628 Lord Carlisle of Bucklow: Clause 11.
Mr Justice Silber: And I think you have got it in Clause 11 as well. It is, I think, slightly wider in the Law Commission proposal in Clause 9. I am concerned as to how one would construe or how one would formulate a criminal offence where the arrangement was not bid for contracts because you would have to work out some obligation and be able to specify what the extent and nature of it is. That seems to be a practical difficulty.
Q629 Chairman: I would like to move forward a little bit. We have looked at the principal and agent and you have explained your position on that. Sections 1 and 2 require that there shall be an advantage before there is an offence, and Section 3 does not refer to advantage. The person commits an offence if he performs his function as an agent corruptly. Where does advantage fit into that, or does it not? Do you have to show that there is an advantage there? You get it in Clause 10.
Mr Justice Silber: Clause 10 will tell you how it is. It seems that there are three corruption offences of which the third one is Clause 3 linked to Clause 10.
Q630 Chairman: So you bring advantage into 3 through Clause 10?
Mr Justice Silber: Yes.
Q631 Mr Stinchcombe: What happens then if a local government officer simply refuses to exercise his powers of discretion properly, just for reasons that he is a maverick and disruptive?
Mr Justice Silber: In that case that will be moving on to misuse of public office on his part.
Q632 Mr Stinchcombe: And that is not yet covered by this Bill?
Mr Justice Silber: No, because that is a separate aspect. Lord Nolan's Committee looked into this. I took it further when I was at the Law Commission but I think it was then put on ice depending on waiting for the decision of Lady Porter's case because the issue then arose as to exactly what the existing law was before it was decided how to take that further. That is certainly an ancillary subject, the misuse of public office.
Q633 Chairman: Is the reference here to an advantage in effect in all three sections because conceptually the Law Commission did not think there could be corruption unless an advantage was conferred or obtained, or is it that you wanted to limit the offence in this Bill to situations where an advantage was conferred or received? Can you have corruption without an advantage?
Mr Justice Silber: Bearing in mind that advantage is widely stated (and, as you will see, for example, in 4(1)(a), which is omitting to do something, it can be a failure to do something), there has to be some form of benefit and I think the word "advantage" was used as being the most neutral word that the draftsman could think of but it does consist of an omission to sue, for example, or something like that.
Q634 Chairman: So you are saying that there could not be corruption in the absence of an advantage, construed, as you rightly say, in accordance with Clause 4?
Mr Justice Silber: Yes, because that is the thrust of what is being done to interfere with the relationship.
Q635 Chairman: And that is a necessary part of the concept of corruption?
Mr Justice Silber: Yes.
Q636 Chairman: It is not simply something you have done here? If you had said that it would be possible conceptually to have corruption without an advantage, my question obviously is going to be, why did you exclude that here? The answer you say is that it is not part of the nature of corruption.
Mr Justice Silber: Not in the nature of it to --- no, that is the nature of it. I think it has to be limited in that way.
Q637 Chairman: Was the previous law limited in that way?
Mr Justice Silber: I think it would have been limited in that way in the previous legislation. I do not think we had any suggestion that we should widen that at all.
Q638 Baroness Whitaker: Speaking about widening and looking a little bit at the international dimension of this Bill, because of course it is a UK law but the Government hopes to implement the OECD conventions through it and the OECD partners are the governments which have big contractors and want there to be a level playing field, I do not think this international dimension was uppermost in your memorandum. Obviously, you were concerned with UK law but other jurisdictions have got a wide range of offences and one of them is trading in influence and we were looking as to whether that ought to be in. We asked Lord Falconer last week if he thought that should be covered and he said that it was already covered in Clauses 1 to 3, so we wondered whether you would agree that 1 to 3 do cover it.
Mr Justice Silber: I was involved with the OECD's approach up to about 1997. I am not really familiar with what they have done since.
Q639 Baroness Whitaker: They have not got trading in influence in their conventions. It is just that some countries have used it when they implement the conventions.
Mr Justice Silber: You get assistance from Clause 13 because that deals with corruption committed outside the United Kingdom.
Q640 Baroness Whitaker: Yes, but a specific offence of trading in influence - do you think that is covered in 1 to 3 as Lord Falconer said?
Mr Justice Silber: I suspect it probably would be. It is much easier to test it by means of an example. When I thought about this I thought that it would be covered by 1 to 3 as falling within that, yes.
Q641 Baroness Whitaker: I cannot think of an example. Can you?
Mr Justice Silber: You would still be conferring an advantage or it would normally fall within one of those areas because it would either be performing a function corruptly or conferring or obtaining an advantage.
Q642 Lord Waddington: Is it not correct that in some countries there is an offence of abuse of public property? Is that a starter, catching anyone who places contracts on behalf of the public? I think that was suggested as one possibility.
Mr Justice Silber: I do not know what happens with that.
Q643 Lord Carlisle of Bucklow: There is an offence in this country of misfeasance in public property.
Mr Justice Silber: Oh yes, there is.
Q644 Lord Carlisle of Bucklow: Did the Law Commission consider that because it covers a lot of corruption?
Mr Justice Silber: We in fact started doing corruption with a lot of support from Lord Nolan and his Committee and then we also looked separately at misuse of public office which looked into all those areas. I did that for a number of reasons in my sole capacity but that really was put on ice and nothing much has been done with it while Dame Shirley Porter's case was going through the courts because one of the areas is what is legitimate political activity and what is not. It is a very important area and is a necessary part. It would be nice if somebody could at some stage decide whether or not we do need that sort of thing.
Q645 Lord Carlisle of Bucklow: Can one look at corruption in isolation?
Mr Justice Silber: Oh, very much so.
Q646 Lord Carlisle of Bucklow: And also where there is misfeasance in public office?
Mr Justice Silber: Very much so, because corruption has got very different elements to it and is achieving different purposes. There might be some cases where you are caught by both but certainly, for example, private law matters and private capacity matters are completely -----
Q647 Chairman: Even trading in influence arguably might be picked up by one of the criminal offences here. There is no question of either misfeasance in public office or abuse of public property in themselves forming crimes under this Act, but if they do exist as separate potential criminal offences should they come into this Act or should they just be a separate Act?
Mr Justice Silber: I think they should be a separate Act because it raises a whole series of different issues. It brings up points about how the inter-relationship will be between, let us say, the Ombudsman and the Local Government Ombudsman and a lot of other facilities such as that. You are dealing with different concepts and you have to work out how it would fit in with the existing points. One of the real areas is to work out what happens if a politician who is elected wants to do something and tells his officials to do it and what their problems are in that area, so it is really a very different area.
Chairman: We have had a number of suggestions that perhaps some advert might be introduced into the definition.
Q648 Mr Stinchcombe: One of the suggestions that has been made is whether we should incorporate the word "dishonestly". I do not know whether you have any views as to whether that will strengthen or weaken or harm in any way the legislation?
Mr Justice Silber: I am very strongly against that because the word "dishonestly" is a very uncertain word. It means different things to different people. For example, is it dishonest if I were to take a picture into an antique dealer and he said, "Oh, that is a Canaletto", and I knew it was not and I therefore get a very large sum of money back for it? Is it dishonest for me to use the telephone in the Law Courts to phone home or my aunt in Australia? Where does it become dishonest? The difficulty that one is getting is that the cases where the word "dishonestly" is normally used is where the matter would normally be criminal in itself, for example, obtaining property by deception would in most people's minds be a criminal act and therefore the word "dishonestly" does not add very much to it. In the case of theft, where you have appropriation of property belonging to another, that in itself would normally be a dishonest act and the only thing that "dishonestly" achieves in that purpose is to make sure that you do not think you have got a bona fide good faith right to it. There "dishonestly" is not doing all the work. If you wanted to put "dishonestly" into an offence like this it would be achieving a substantial function and has a totally uncertain meaning.
Q649 Lord Waddington: One thing you do say is that the offence does imply a breach of duty.
Mr Justice Silber: Oh yes.
Lord Waddington: If the offence implies a breach of duty I cannot for the life of me see why some words such as those could not be incorporated into the Bill. You see, the difficulty is still the one I identified earlier on. You have somehow got to tell the ordinary layman when he crosses the line and begins to commit a criminal offence and I do not see how, reading this Bill when there is not the slightest mention of anything approaching moral turpitude or wrongdoing or all the rest of it, he could possibly be expected to understand that he has committed a criminal offence, as I mentioned earlier, if he slips ten quid to a baggage handler. I just do not understand what the objections are to reinforcing the point that there must be moral turpitude. I am not sold on "dishonestly". I would like you to answer why you object to any of these terms. All sorts of terms have been floated which have "undue", which have "unfair", we have had "breach of duty". "Dishonestly" is only one in a whole rag-bag of possibilities but I cannot see why you exclude all of them.
Q650 Chairman: They are two quite different categories. One is breach of a legal duty and the other is a breach of a moral duty. Why should not one of those somehow creep into this?
Mr Justice Silber: Could I put something in writing, because I would like to think about the point you have mentioned, about replacing the word "functions" in Clause 5(1) with "duties"? I do not know if that would make it easier because that might answer Lord Waddington's point, because if you look at that, and if one were to replace in 5(2)(a) the word "functions" with "duties", that is something I would very much like to think about. I am not attracted at all by the use of words like "undue" or "wrongful" because if I had a client who asked me what those words meant in the context of a case I think I would scratch my head and say I would not know the answer.
Q651 Chairman: We have been told that "unduly" obviously comes from the civil law and dûment is a well known word in French law, not just immorally but including illegally in some way.
Mr Justice Silber: The trouble with using a phrase like "performing your functions in an illegal manner" is that that just begs the question.
Q652 Chairman: Not necessarily. You would receive a bribe in the performance of something which was otherwise unlawful.
Mr Justice Silber: Yes. I think the word "duties" might well be a word that might make it much clearer. "Duties" entails an obligation rather than the word "functions" which I think means a sort of mode of working.
Q653 Chairman: But were you influenced in leaving out "dishonestly" and some of these other words by what the courts had said over the years? I think the courts said in one or two cases that "corruptly" did not mean dishonestly.
Mr Justice Silber: Yes.
Q654 Chairman: Did that influence the Law Commission?
Mr Justice Silber: Our general view has been that that has influenced us and the other point was that in another context we found that the word "dishonestly" is such a vague and uncertain word that people would not know in advance what would be caught by it and what would not be caught by it. As I said in answer to Mr Stinchcombe's question, it is all right using the word "dishonestly" where you have as it were something where it has really been put into negative and defence terms, in other words, in theft, if you found it by mistake or you thought it had been abandoned, but where you try to get it to do all the work then I think you are running into serious difficulties.
Q655 Lord Waddington: I think I would clearly be behaving dishonestly if I gave a baggage handler ten pounds to go and get somebody else's bag but I would not be behaving dishonestly, would I, if I told him to go and find my bag? That is the difference.
Mr Justice Silber: As I say, I put in my note what I think is wrong and the problems about the word "dishonestly", but I do not know if you think it is worthwhile thinking about replacing the word "functions" with the word "duties".
Chairman: It would be very kind and perhaps you would send us a note about it.
Q656 Mr Stinchcombe: On that suggestion, if you do that, so that the core wrongfulness is the breach of duty, does that not make misfeasance in public office much more a corruption offence because there you can readily imagine a public officer exercising powers and duties in a completely malevolent fashion, deliberately refusing to give people tenancies in council houses because of the colour of their skin or sanctioning play equipment next door to somebody they do not like because it causes a disturbance?
Mr Justice Silber: Misfeasance in public office is an extremely vague offence; that was the point that upset Lord Nolan about it. He thought it was so uncertain that nobody knew what it was. The big difference between that and corruption is that in corruption there is a benefit being done. In misfeasance in public office it can be someone just doing something out of stubbornness, out of omission or laziness or for different purposes. It is the concept of benefit and advantage which is the hallmark of corruption which is really very different from misfeasance in public office. You might well get a case where people are caught on both.
Q657 Dr Turner: I think it could be said that there is something of an analogy that could be drawn with the crime of attempting to pervert the course of justice and involving, clearly, intent, either in the long or medium term, to do that. One way you could express it is 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"?
Mr Justice Silber: Could I reply to that when I see on paper those conditions which you have just suggested? At first blush I think there are difficulties with it. I would like to look at it and reply to that in writing. I am not trying to be evasive but it would be easier to see what the points are and to point out what might or might not be covered by it.
Q658 Dr Turner: I am sure that could be arranged. A further suggestion is that we have received evidence from the OECD representative that the Bill falls short of fulfilling our obligations to comply with the OECD treaties. Do you agree with that possibility?
Mr Justice Silber: I am afraid, and I must apologise, that I do not know what the terms are in the OECD treaties. Certainly at the time when we drafted our proposals we had every reason to believe that they complied with what the OECD requirements were in 1997. I just do not know what the position is. I have no access to what their requirements are at the present time.
Q659 Dr Turner: Perhaps that is another one which will need to be pursued in writing.
Mr Justice Silber: I would have thought that Lord Falconer or Lord Goldsmith would have a much better idea of what those obligations were than I would.
Q660 Dr Turner: My recollection is that the witness told us that other countries in their legislation have pursued the question of undue reward, advantage, etc, as has been suggested earlier.
Mr Justice Silber: Yes. As I say, I do not know, but in order to do it somebody would have to let me have copies of the OECD documentation.
Q661 Chairman: We will do that. Can I just ask you about something you dealt with fairly fully in your paper? At the beginning of this inquiry we were told by some people that the South African model was one that we should follow. There was quite a lot of support for that; in other words, that we should have separate offences precisely defined and people would know exactly where they were. Could you tell us again why you thought that was not a good idea? Did you consider something like that?
Mr Justice Silber: Oh yes, very much so. We considered it very clearly as to whether we ought to deal with those. Indeed, that was very much the policy behind the Theft Act 1968, a whole series of different offences, and then to have residual offences. We came to the conclusion that there are so many different types of corruption that nothing would really be gained by dealing with that. We also were very much influenced by the fact that it must be the aim of every legal system to have as few criminal offences as possible rather than vast numbers of them. I would be very strongly against using the definition of "corruptly" in the South African Bill which is so wide and so unclear as to be of no value at all and to make it impossible to predict what conduct would constitute the offence and what would not. One of the factors which did strike us when we analysed where people said that the new criminal law on corruption should bite was just how many different areas it came in and therefore, instead of having all those different instances, which were very wide, all round the private and public sectors, we thought the best thing was that we could do it in one offence and we should try to do it; otherwise there literally would be dozens of them.
Q662 Lord Campbell-Savours: In your paper of 9 June, paragraphs 32 to 35, you use some fairly strong language in terms of the South African example. Have you been in discussions with them at all about their proposals for legislation?
Mr Justice Silber: No. I left the Law Commission in 1999. The South African Bill is a new Bill. When we prepared our proposals, we looked at all the legislation around the different countries. I do not know if you have seen the copy of our consultation document. That shows how corruption was dealt with in different countries at the time. Therefore, we were only looking at the existing legislation. The South African Bill is obviously a very new development.
Q663 Lord Campbell-Savours: The language you use suggests that the Bill as proposed in South Africa would simply collapse when it comes into operation.
Mr Justice Silber: I am afraid I do put it very strongly in paragraph 32 because I do feel that the use of the word "corruptly" there is so wide that nobody will know what is covered by it. I feel very strongly that if we were to introduce that sort of legislation in this country it would be a step backwards because nothing would be gained by the legislation. One of the clearest lessons from the present legislation is the great difficulties caused by using the word "corruptly". Giving it an extended meaning there would cause even more problems than we have had up until now.
Q664 Lord Campbell-Savours: Your words are, "First, the definition of 'corruptly' is so wide that no citizen would be able to know whether conduct is covered by it. Similarly, no prosecutor would be able to predict if some conduct is criminal."
Mr Justice Silber: Perhaps I put it too strongly. There is obviously some conduct that would be covered by it, and you would know it was covered by it but you certainly would not know the boundaries of it, which is the real point about it. It is really that which is very difficult. I do not know what the italicised words I have set out there, against the spirit of any policy practice, mean. With respect, I do not think anybody who is advising would know either. Therefore, that is the great problem. The approach that we tried to adopt was to have legislation where we endeavoured to give some meaning to the word "corruptly".
Q665 Chairman: That takes us back to Lord Waddington's point, especially when you have to read section three with sections ten and five. Is it sufficiently clear for people to know what you are gunning for, not only sufficiently clear for the prosecution but sufficiently clear for people arranging their business affairs?
Mr Justice Silber: I do not know if it would be assisted by putting in clause one the operative words of clause five so that you would have clearly set out what the requirements were. If it was to say, "A person commits an offence if he (a) confers an advantage; (b) intends the recipient to do an act" and then (c), that used to be the way that criminal provisions were drafted. If that was done, it might well be much easier to follow because you would not have to keep looking at different parts of the different provisions. For my part, I would find it much easier if it was put in that particular form, if it just said, "A person commits an offence if he ..." and then (a), (b), (c), (d) and (e) and then you moved the relative bits from five into that clause. I would find that probably easier rather than having to look from clause to clause.
Q666 Chairman: It is going to make a very long clause.
Mr Justice Silber: Yes, but it would still say "if the following four ingredients are satisfied".
Q667 Lord Waddington: You have already said that there are other concepts in the Bill which are not exactly helpful, where there might well have to be redrafting. I am looking at clause seven and remembering what was said to us by Mr Staples. I do not know whether you saw his evidence?
Mr Justice Silber: Yes, I did.
Q668 Lord Waddington: He pointed out that if, under an arrangement with the government, a private toll was operating the person who received the toll might be committing a criminal offence because he was performing a function for the public, which is not completely daft when you come to think of it because he is performing the function only because of an arrangement made between the government and the private toll operator. When you mentioned earlier that there perhaps was room for some refinement of this reference to functions performed for the public, I wondered whether that was not an example of the need for a change.
Mr Justice Silber: It might well be. My instinctive reaction, on the example that you give, was that a private function was being performed, but that might be a matter clarified on the drafting of it. It would be a matter which, by some sort of definition section, could be dealt with. I think I said in my first note that I was a bit worried about this wording.
Q669 Lord Carlisle of Bucklow: In paragraph 22 of your paper you say that the Law Commission endeavours to produce offences which are as easily comprehensible as possible in the light of the subject matter to be dealt with. You go on to say, "Unfortunately, the concepts required to establish a threshold for criminality involved in corruption offences are much more complex and consequently much more difficult to express than those in, say, assault cases." Are you satisfied you have the threshold right in the end, or is there still a situation where we may be criminalising a lot of conduct which the average individual would not look upon as criminal?
Mr Justice Silber: I do not think it does criminalise matters which ought not to be criminalised, on my reading of it. The type of illustration that George Staples gave is something where that is a private function matter.
Q670 Lord Carlisle of Bucklow: But you do agree that there is a difficulty with getting the threshold of criminality right?
Mr Justice Silber: Absolutely. That is the real difficulty of working out what the litmus test should be for criminal liability.
Q671 Lord Waddington: This Bill would appear to criminalise what people call facilitation payments and there is a world of difference, one would have thought, between a payment to somebody to get a service unfairly and against the interests of others and a payment made to get your legal rights. I keep quoting my baggage handler. I am entitled to my bag. That fellow's ordinary duty is not to go behind the carousel and hunt for Waddington's bag but if I slip him £10 in order to go behind the carousel and get the bag am I not right that that is a criminal offence under this Bill? Surely that is a fairly good nonsense?
Mr Justice Silber: I am not sure it is. It depends what his duties actually are. I would be concerned if that form of conduct was a permissible form of conduct.
Lord Waddington: It would appear to be so because it is not in the course of his ordinary duty to take tips from members of the public and I have asked him to do a job which is not his ordinary job. He is not normally in front of the carousel. He is usually behind it, but I see him so I say, "Go behind and get my bag. I am in a terrible hurry." I challenge you to say that that is not a criminal offence under this Bill. I think it is.
Baroness Whitaker: I suggest it might be correctly so because in so doing he has not got my bag and I am in just as much of a hurry as you are.
Lord Waddington: Baroness Whitaker is suggesting it ought to be a criminal offence. It seems to be a criminal offence to me but I do not think that all the public would agree.
Q672 Chairman: Baroness Whitaker may have a certain amount of support. Could I ask a question on clause seven? The consent of the principal is, in certain circumstances, to be a defence. Do you see any difficulties in practice with applying that?
Mr Justice Silber: No, I do not think so.
Q673 Chairman: Is it going to mean that people get off when they should not get off?
Mr Justice Silber: I do not think so. There are a lot of cases where there might be some benefit given and the principal is quite happy about it. This goes back to the whole function of the law on corruption.
Q674 Chairman: If you confine it to principal/agent and a breach of loyalty only for principal and agent, of course you exclude a lot of other things which some people would think should be included.
Mr Justice Silber: Knowledge of all the circumstances and permitting something to be done in that way, yes. In a lot of cases, it might well form part of the person's pay package that they do get benefits of that sort.
Q675 Baroness Whitaker: The estate agent I deal with owns his own firm. He is the principal. I offer him money for his own pocket, not to go into the firm, not as commission, if he takes my bid for a house which is a little lower than another one he is offered, so I get my house at a lower price and he gets quite a nice present. That appears not to be corrupt.
Mr Justice Silber: Yes, it would be.
Baroness Whitaker: Is it? It is an entirely private transaction and the principal consents. He is the principal. He has not put this payment through the books. He has just kept it.
Q676 Mr Stinchcombe: Is he not the agent and the vendor as well?
Mr Justice Silber: He is. That is precisely the problem with that. The vendor normally pays the commission and therefore that would mean that ----
Q677 Baroness Whitaker: So that is caught?
Mr Justice Silber: Yes.
Q678 Chairman: We would be very glad if you would send us your written comments on the topics you have mentioned and indeed anything else you feel worth mentioning.
Mr Justice Silber: If there is anything else that the Committee thinks I could help with, I would be delighted to do so.
Q679 Chairman: It may well be that there will be other things we would like to ask you and we will put those in writing.
Mr Justice Silber: I would be flattered if you did so.
Chairman: We are very grateful to you for coming today.