Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witnesses (Questions 50-59)


14 MARCH 2003

  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 10 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. [1]

  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.

1   Note by witness: The supplementary memorandum (DCB 29) prepared by the CPS/Visa Team sets out the figures for police corruption and other public offences since early 1998 to date. The tables referred to are not included as the information they contain is sensitive. Back

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