Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 560-579)


4 JUNE 2003

  Q560  Lord Campbell-Savours: The Health Select Committee in the House of Commons.

  Lord Goldsmith: I cannot tell whether we are thinking of the same case. I am aware of a case where an issue has arisen about whether or not it is possible in a criminal prosecution to rely upon something that was said by a non parliamentarian to a select committee. Have I got the right issue?

  Q561  Lord Campbell-Savours: Yes.

  Lord Goldsmith: But that is a circumstance in which it is the fact that that person said it which is relevant to whether or not the company with which that person is connected is guilty of a criminal offence.

  Q562  Mr McDougall: On clause 12 as well could I quote you the Clerk of the House when he made mention of the fact that the fundamental requirement for a successful prosecution of the proposed new criminal offence of corruption will be clear evidence of the existence of a corrupt bargain and that clause 12 will not materially assist the prosecution in meeting that requirement. Three brief questions. First of all, is clause 12 as it stands really necessary?

  Lord Goldsmith: I think there could be cases where without clause 12 it would not be possible to bring a prosecution because evidence of a key ingredient of the offence would not otherwise be available, so my answer must be yes, it is necessary.

  Q563  Chairman: Have there been any recent cases of that kind as far as you are aware, without giving us names or details?

  Lord Goldsmith: No, there is the case to which Lord Campbell-Savours is referring which is not quite the same where there may be some implications from the unavailability.

  Q564  Mr McDougall: Have you known of any examples at all of circumstances where a Member had been involved in corruption but the only evidence available to prosecute him or her came from parliamentary proceedings?

  Lord Goldsmith: If the circumstances were that all that one knew was that the allegation was of a statement which was made in Parliament which was thought to have been made as a result of corrupt inducement, as the law stands at the moment one simply would not go any further to investigate it because the fundamental aspect of it would not be provable in court because of Article 9. The answer is I do not know of any such cases but I am not sure that demonstrates that there might not have been any.

  Q565  Mr McDougall: Has there been any narrowing down confining clause 12 to, for example, cases where Members have been bribed, to make it much more specific? Would there be any advantage in doing that?

  Lord Goldsmith: I think the disadvantage of doing so, if I may say so—and these are policy questions rather than questions as to what one wants to cover—is it would cut out, for example, the case of the corrupt so-called expert witness giving evidence to a select committee because one could not then get that material in, and I would have thought that one would in principle want to be able to catch that sort of conduct because giving corrupt, false evidence to a parliamentary committee seems to me to be a very grave thing to do.

  Q566  Mr Shepherd: I was very impressed with your ringing endorsement of the Bill of Rights and that you expected a Member of Parliament to speak freely, honestly, according to belief, et cetera, but of course much of parliamentary life is dependent upon a system of deals and bargains and agreements as part of the oil that enables it to function. It has been put by one of the Clerks in a paper to us, and I will take a big example, a government which is a minority government is returned and it has to enter into a coalition. In order to do that there is a conflict naturally of what a number of Members of Parliament who might form this government believe in honestly, passionately, etcetera. The inducement is that they become part of the government of the country or—and I say this with diffidence—one of them may be offered Bermuda in return for voting in a certain way. As the Bill is drafted now that seems to have all your agents A, B and C performing and acting. Does it not meet the way corruption is established in this Bill? Would it not be a corrupt pact?

  Lord Goldsmith: I need to think a little bit further about the detail of how the Act operates but it does occur to me to say that I had understood not that the example you have given was the reason for it but that circumstances which related to the way that Parliament operates were one of the reasons that the Joint Committee on Parliamentary Privilege thought that some sort of filter was appropriate, a filter which had some understanding of the way that Parliament operated and could therefore perhaps distinguish.

  Q567  Mr Shepherd: It is just I am seeking clarification on this because it goes right through the parliamentary processes, as you know perfectly well. In inducing people to vote for something, sometimes offers are made by those in a position to make offers. I am not saying it is the biggest and single most important issue but it is important. It is now mooted that we should have a European prosecutor. What would his role be in this? Does that do away with you as a filter?

  Lord Goldsmith: I am firmly against the European public prosecutor and that is one of the reasons for it because I think it is very desirable that our Prosecution Service ultimately has an accountability to Parliament through the Attorney General. I think that having a European public prosecutor which side-stepped that would give rise to a lack of accountability and disruption of the system that we have, with disadvantage. That is one of the reasons I am against that.

  Q568  Mr Shepherd: It would undoubtedly have an effect if it comes in. If the government comes in it may change its mind. I accept it is a draft proposal as well but surely this intervenes directly in the operation of the British judicial process (because many of the transactions in this Bill are trans-national that you are trying to strike at) and that would give them a direct role in the British judicial process, would it not?

  Lord Goldsmith: If I can, I will focus on this particular Bill. That depends in what form it is retained. If, for example, the Act requires that before certain prosecutions could be brought by Act of Parliament there be consent from whether it is the Attorney General or anyone else, that would remain a condition of the offence. Whether or not there was a European public prosecutor whose job it was to look at intra-Community—

  Q569  Chairman: Many of the sort events we have been considering in the corruption context would not appear to fall within the proposal of a European prosecutor. Could we stick with clause 12 for the moment. The question has been raised as to whether it is right to limit clause 12 to corruption. There are other offences which perhaps should also fall within the same heading, fraud for example you mention. Do you have a view as to whether we should extend this removal of the privilege to cover fraud as well as corruption?

  Lord Goldsmith: To do so would from a prosecutor's point of view, from my point of view as prosecutor, be helpful because it could mean that evidence which was relevant to prosecuting a particular offence would be available when at the moment it is not. But I think one would have to balance that as a policy matter against how far one wanted to make incursions into the privilege, and I think broadly there is a balance that one has to strike on the one hand between leaving the fundamentals of freedom for parliamentarians to speak intact whilst making necessary incursions into that which are consistent with that freedom of speech, and I have suggested that actually having sanctions against Members who spoke for corrupt purposes, if such a thing were ever to happen, enhances the quality and the nature of freedom of speech in Parliament.

  Chairman: You would like to follow this up?

  Q570  Mr Stinchcombe: Just one very short question. You have suggested that clause 12 would be necessary in order to prosecute, for example, a Member of Parliament who took a payment in order to vote in a particular way. However, on my reading of the relevant clauses you would not have to prove that the Member of Parliament voted in order for the offence of corruptly obtaining an advantage to be made out and neither would you have to prove that he had voted in order for the briber to be convicted of the offence of corruptly procuring an advantage.

  Lord Goldsmith: I think there are two answers there. You might not have to if there is a case where you were alleging it happened in advance, but in practical terms if you could not actually put before the jury what happened, the prospect of getting a conviction could be significantly weakened and up in the air, so what happens about this. You are saying he patently denies he was paid. He says that anything he received was a contribution towards this or that or the other. As a prosecutor you want to tie that into what actually happened. The second answer is that the Bill also covers those circumstances where something has been done in advance in expectation of something happening afterwards and then it would be rather more necessary to demonstrate that the step had been taken. I am thinking of 5(2), if I have got this right.

  Chairman: You mentioned your role, let's just have a look penultimately at that. What is the role of the Attorney General?

  Lord Waddington: If the consent to prosecutions for corruption were vested in the DPP instead of the Attorney General, which has been suggested by some people, the argument against it was that the responsibility of the DPP could be delegated right down the chain until in fact some people might think it was not an appropriate filter at all. Is there some sort of halfway house whereby if the consent was vested in the DPP it would be possible to ensure that that consent was given at the highest possible level.

  Q571  Chairman: Can I just add a rider to that. One of the suggestions was that it should be the Crown Prosecution Service which would have the right to look at this and decide. I think if it is made the Director personally that is one thing, if it is the Crown Prosecution Service then there is really quite a serious problem that arises. Do you have a view on that?

  Lord Goldsmith: Certainly. Lord Waddington is of course right that at the moment, and there are many examples of DPP consents, as there are many examples of Attorney General consent, a DPP consent can be exercised by any prosecutor because there is a delegation down. It would be perfectly possible to provide in certain offences that the consent should not be exercised below a particular level of lawyer and indeed as internal matters of management of course the Crown Prosecution Service does do that, and certain very serious matters will not be determined at a lower level. I would be concerned about something that required the DPP personally to consent because then there would be questions of demand on his—and we have to appoint a successor or perhaps her time.

  Q572  Baroness Whitaker: How about if the Director of the Serious Fraud Office who had the consent rather than the DPP, again at the appropriate level?

  Lord Goldsmith: There will be some corruption cases which will fall within what the Serious Fraud Office does, certainly.

  Q573  Baroness Whitaker: Exactly.

  Lord Goldsmith: There will be others that do not.

  Q574  Baroness Whitaker: If his mandate were enlarged to make it appropriate for the whole of the scope of the Bill?

  Lord Goldsmith: I would have some questions about that. The Serious Fraud Office is a very important and skilled organisation dealing with complex and serious fraud which often does involve corruption, these two things do quite frequently go together, but I would have some questions about whether or not the office should be involved, for example, in the sort of I do not know how to describe this, pedestrian corruption which does take place, somebody slipping a backhander to the buying manager of a small company in order to sell particular goods to that company. I am not sure I would want the Serious Fraud Office to be taken up dealing with that, that is a question of resources.

  Q575  Lord Carlisle of Bucklow: Going to your point and for a moment accepting that, in fact, dishonesty is not a necessary element in the crime of corruption, nevertheless can you ever envisage yourself or have you ever given your consent to a prosecution in a case of corruption where there has not clearly been a dishonest intent?

  Lord Goldsmith: I cannot immediately recall—

  Q576  Lord Carlisle of Bucklow: Can you imagine any?

  Lord Goldsmith: I cannot immediately recall one, that is right, and the most common case that one gets is where you have probably got the corruption mixed up with a conspiracy to defraud, to pretend that the bid is the lowest bid or to put in other false bids to make it look a satisfactory bid, something of that sort. I can envisage circumstances in which one would question whether there is dishonesty in, for example, something which is being done which the agent would have done in any event. One might say that is still corrupt, it may still be corrupt because you pay someone in the expectation that they will primarily be motivated by that, but in fact, they do not damage the principal at all in what they are doing.

  Q577  Lord Carlisle of Bucklow: Would you envisage giving your consent in those circumstances to a prosecution?

  Lord Goldsmith: I am reluctant to speculate on all circumstances.

  Q578  Lord Carlisle of Bucklow: I realise that.

  Lord Goldsmith: I have indicated already that if one is searching for something I think the concept of breach of duty is a more profitable one than dishonesty per se.

  Q579  Lord Carlisle of Bucklow: Certainly it would get rid of the whole problem of small compliance payments and corporate hospitality and things of that nature.

  Lord Goldsmith: I think the Bill does that in any event because of the requirement that something should be primarily in return for conferring an advantage. I am thinking also of the question Mr Shepherd put to me of what somebody does in a coalition government. If somebody in a coalition government is voting with government primarily because of the advantage that has been promised, I strongly suspect the answer to that is no. It is because the person believes, at least for the time being, it is better to support that government than otherwise but in the example of corporate hospitality I would think the chances of demonstrating that somebody was accepting a major contract primarily in return for a lunch is unlikely.

  Lord Carlisle of Bucklow: It may be a bit more than a lunch.

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