Examination of Witness (Questions 380-399)|
2 JUNE 2003
Q380 Lord Carlisle of Bucklow: This
Bill is based very much on an agent and principal basis. Do you
see any advantage in that at all?
Professor Pieth: I like the idea
generally as an abstract concept. That is where the dishonesty
comes in. Somebody goes against his duties towards his principal
and I would be interested in that, as far as my abstract need
as a professor, in understanding the general notion of corruption.
As a legal concept, to apply it in concrete cases, I have my doubts
whether the analogy that you might have from the private sector
really is applicable in the public sector. You will see that in
some clauses you have to take back again what you are saying.
You are giving an exception but saying this exception does not
apply to the public sector. The reason is that this agent/principal
idea cannot be fully applied throughout. This is up to you. If
you like this notion, I will not quarrel with you. This is your
domestic prerogative. I would find easier solutions preferable.
Q381 Chairman: I would like to go
back to your secretariat's submission which says, "As a definition
of the core mens rea element of the offence, clause 5(1)
is obscure, circular and unsatisfactory. It would be preferable
to devise an affirmative definition of `corrupt' or `corruptly'
using language drawn from existing common law cases and statutes
. . ." That is the first suggestion. ". . . or by using
the word `undue' as it is used in your Convention." I am
not sure whether "unduly" in English has the same meaning
in French. There is an element of legality, as I understand it.
"Unduly" does not necessarily import the concept of
illegality. What do you mean by "unduly"?
Professor Pieth: You could translate
"unduly" by "not legally foreseen".
Q382 Chairman: It has a purely legal
connotation but "unduly" in English does not necessarily
have legal connotations.
Professor Pieth: It has a moral
connotation, I accept. I think, in the way it is translated in
the continental European context, "unduly" means there
is no legal entitlement. That is why I am insisting that on an
objective basis you have to be very clear and then it can be simpler
in developing the mens rea.
Q383 Chairman: If you told a jury,
"You can do this unless you do it unduly" they would
not be very clear as to what was meant by that. We have somehow
to spell out "unduly" if we follow your suggestion.
What about the other idea that you could devise a positive and
affirmative definition of "corrupt" or "corruptly"?
They do not go on to spell that out in the document.
Professor Pieth: My secretariat
is independent. I did not advise them what to write there.
Q384 Chairman: I am not asking you
to defend it; I am just asking you to comment on it.
Professor Pieth: I would prefer
to simply eliminate the concept of "corruptly" here
because it is causing trouble. It is very difficult to define
it in positive terms. My suggestion would be to use something
like "not legally foreseen". I would work from the concept
of "undue" and translate that into straightforward,
Q385 Chairman: Not legally foreseen
or not legally permissible?
Professor Pieth: It is more than
that. There is no entitlement. There should not be an entitlement.
We have a problem if an official takes money to which he has no
Q386 Mr Stinchcombe: Knowingly to
confer advantage to which he had no legal entitlement?
Professor Pieth: That is right.
Q387 Lord Waddington: I thought we
had more or less agreed that there may be some difficulties in
explaining to a jury precisely what "undue" means, but
we are agreed, are we not, that this offence of corruption must
involve some improper motive? There must be either dishonesty
or lack of integrity or breach of duty. Something improper has
to surround this transaction, has it not?
Professor Pieth: By definition
it is improper to knowingly promise money to someone who has no
title to it in order to influence him to conduct his business.
There is no need to say "improper" additionally because
it is improper by definition to intentionally confer an advantage
that he has no title to.
Q388 Lord Waddington: There has to
be something to prevent somebody being called a criminal for the
mere payment of money without any improper motive at all. I have
mentioned often in this Committee that, at the moment, the Bill
is so broadly framed I would be a criminal if I were to pay money
to a baggage handler at Heathrow to get him to hurry up and extract
my baggage from the mass of other baggage. That must be wrong,
must it not, if your legislation is so widely drawn it stigmatises
as criminal acts which no reasonable person would consider criminal?
Professor Pieth: Let me give you
two answers. The OECD's position is that we are asking you to
deal with so-called genuine, straightforward grand corruption.
We are not dealing with small facilitation payments that are sometimes
necessary to move around or to get a telephone installed. We are
under heavy criticism worldwide for this. The reason why we are
doing that is because we have a kind of long arm jurisdiction
situation here. You are in a way tidying up situations in Kazakhstan
from here which is very difficult and is only going to work in
very major cases. If we have to envisage a case run in Britain
on ten pounds that have been given to a baggage collector at an
airport somewhere in Kazakhstan, that would not be practicable.
For that reason, we have said we are not dealing with that.
Q389 Chairman: How do you set the
limit? If you are going to do it by law rather than practice and
not prosecute, how do you set the limit for these facilitation
Professor Pieth: Different countries
have chosen different solutions. For instance, the German speaking
world on the continent have been saying payments for an act that
is impermissible, going against the law, are covered. That can
be a small payment. If a policeman does not give you a fine because
you have given him ten pounds, that is a clear case of corruption.
That is one approach, that you say it was in furtherance of an
illegal act. The other approach would be the one the Americans
and the Canadians have chosen. You have an explicit, affirmative
exception saying small payments for routine government transactionsthat
is the wording they useare not acceptable but are not criminalised.
We are not saying that is allowed. We are not saying it is good
because we would get into serious trouble in Pakistan, India and
other places. People are suffering from that behaviour being multiplied,
and that causes a problem but it is not something we can tidy
up from here.
Q390 Chairman: Do you not give a
guidance or definition as to what is meant by "small"?
Professor Pieth: No. There are
guidances given in some countries. Around $500 has been one such
approach. Other countries do not have a distinction. France, for
instance, has no distinction as to the current UK law but what
you certainly do in France and in the UK at the moment is that,
in procedural terms, you would filter cases. You are not forced
to take up every case. The prosecutorial discretion would take
care of that situation. In France you have an informal threshold.
I do not know what it is.
Q391 Vera Baird: I wanted to go back
to the attempt to define the act. Looking at Article I in the
OECD Convention, there is a problem for us in the notion of "undue"
which does not mean illegal. It has two quite separate meanings
apart from slightly improper. It means not timely. It means not
due now but perhaps due later, like a bus coming. It also has
an element that there may be an advantage which is due but this
is too big an advantage. There is a quantitative element too and
I do not think it therefore does encapsulate it. If one looked
at Article I and just replaced the word "undue" with
"to which he had no legal entitlement" it would say
that it would be an offence for a person intentionally to offer,
promise or give any advantage to which the recipient had no legal
entitlement in order that the official refrain or act. That would
sum it up, would it not? Would that be sufficient?
Professor Pieth: Yes.
Vera Baird: From our point of view, would
not intentionally giving something to which there was no legal
entitlement in order that someone refrain or perform something
outside their official duties be sufficient to define "corruption"?
Chairman: Would you see that as covering
tips given after the event or only tips given before the event?
Q392 Mr Garnier: Or anticipatory
Professor Pieth: It is basically
aiming at the situation where you are trying to influence someone.
It covers payments before. I think your Bill is also covering
gratuities, payments afterwards. That is not something we would
require in the context of transnational bribery. You are doing
that for different purposes to cover the Council of Europe's Convention
or for domestic purposes. That is not something we would insist
Q393 Mr Garnier: My question deals
with the undue pecuniary or other advantage in Article I. I am
not a criminal lawyer but I wonder whether we get any assistance
from our own Theft Act of 1968 where we have a collection of offences
broadly dealing with the obtaining of pecuniary advantage, either
by deception or by some other form of dishonesty. I do not know
whether that is something that in our jurisdiction we could usefully
import into your criticisms to produce a better answer to the
problem of "undue advantage" or payment.
Professor Pieth: Not being a specialist
in your Theft Act, what seems to be the problem is that we are
quite broad by saying that there is no legal entitlement. We are
not saying it is forbidden to take that; it is simply not something
that you have a right to take, which captures many more cases.
Mr Garnier: The easy circumstances are
the obvious bribe of paying somebody $1 million to do something
and giving a waiter a five euro tip for bringing your coffee rather
more quickly than the next table's. The difficulty is going to
come in that grey area, the margin, whether the tip moves from
being a gratuity to becoming a corrupt payment. What we must try
to do presumably in drafting our statute is to make that grey
area rather less grey so that the lawyer, the businessman, the
public official in Egypt
Chairman: If you give somebody £5
to carry your bag which he is not legally entitled to, it does
not necessarily make it corrupt, whether you give it before or
afterwards, does it?
Mr Garnier: Equally, if we make you late
for your aeroplane this evening, if you tell the taxi man, "I
will pay you twice what is on the metre if you get me there in
time", you are encouraging him to break the speed limit.
Q394 Chairman: Take the £5 tip
and the extra tip to make someone go faster than the law allows.
Are they in a different category?
Professor Pieth: The answer goes
back to the system we have in our own country where we introduced
the provision that you are encouraging him to break the law. If
my inducement to the taxi driver would result in him breaking
the law by speeding, then I would be in effect and if you were
a public official that is another additional requirement you would
Q395 Lord Campbell-Savours: That
was the reference to "in furtherance of another illegal act"?
Professor Pieth: Yes.
Q396 Lord Campbell-Savours: Where
is that applied? You have talked about different countries. What
Professor Pieth: There would be
the German solution. The Swiss solution uses that wordingthe
German speaking world generally. Other countries have a more extensive
notion of "undue". They would try to capture these cases
that we do not want to capture with the word "undue".
Q397 Mr Stinchcombe: I wonder whether
there might be a difficulty with just focusing on the legal entitlement
aspect. Would it not be possible for people to enter into all
sorts of collateral contracts so that there is an entitlement
to receive money under those contracts and they say that they
are legitimately entered into when in fact they are used as a
guise simply to exert undue influence? I wonder whether, in order
to meet the points made by my colleagues about improper motive,
it is not necessary for us to put something in about the intention
wrongly to influence someone. That does seem to me to be the essence
of the advice we are targeting.
Professor Pieth: My quarrel is
not with your approach generally, if your general approach is
to have that kind of qualifier. The difficulty is what does this
actually mean. Can you make sure that it is not broader than what
other countries are doing? We have so far not seen a very straightforward
definition of what it really means. We have insecure ways where
the clause tried to say what corrupt conduct is. The meaning of
corrupt conduct has left a lot of questions open.
Q398 Mr Stinchcombe: What about the
point on legal entitlement? Is there not a danger that people
will simply enter into collateral contracts ostensibly offering
perfectly legal services and that be used as a fiction in order
to colour what would otherwise be a corrupt relationship?
Professor Pieth: A situation I
have known from France is that frequently public officials are
offering to write an expert opinion and the value of the expert
opinion is 5,000 but they are receiving 100,000 for it. That is
a typical way of bribing. That is the kind of thing you would
do if you wanted to camouflage something.
Q399 Mr Garnier: That is a matter
of evidence rather than legal definition.
Professor Pieth: Yes. Of course
there are ways of trying to go round it. The difficulty there
is that a public official in most systems would have to explain
why they were giving expert opinions and things like that outside
their job. If they enter into all sorts of agreements, there is
a need to explain why they are doing this.