Memorandum from Mr Justice Stephen Silber
1. I was the Law Commissioner responsible
for the Law Commission's report on Corruption (Law Corn No. 248).
After its publication in 1998, I sat on an Inter-Governmental
Committee, which considered these proposals. but I ceased to be
involved when I became a High Court Judge in December 1999. All
the views I express are my own and not those of the Law Commission
or those of the judiciary.
2. A new Corruption Bill is long overdue
for the reasons set out in Part II of the Law Commission report.
Subject to two points, the draft Bill is admirable, setting out
clear and comprehensive principles in a form, which is as comprehensible
as possible for a subject as complex and as diverse as corruption.
I do not regard it either necessary or desirable for there to
be specific offences for specific cases if;, as is the case here,
the principles appear clearly in the draft Bill.
3. I agree with:
(a) the abandonment of the presumption as
it is no more difficult to prove corruption than it is to prove
fraud, for which no presumption is needed. In any event, the presumption
is rarely used under its present law because we were told at the
Law Commission that if it is, defence counsel can and do explain
the unfairness of the presumption to juries and this undermines
the value of the presumption;
(b) the decision not to make the new offences
retrospective as such a proposal would contravene Article 7 of
the European Convention on Human Rights;
(c) the requirement for consent before a
prosecution can be brought. In the Law Commission report we concluded
that a consent regime was not necessary, but on reflection, I
do not think that the safeguards against unjustified prosecutions
relied on by the Law Commission in paragraph 7.25 of its report
are valid. Indeed, if there is no requirement for consent before
launching a private prosecution for corruption against a candidate
in a forthcoming election, a prosecution could be used so as to
obtain substantial publicity adverse to the candidate in the election
campaign before the complainant withdraws the prosecution or it
is dismissed after the election. By then, substantial and irreparable
damage would have been done to the person prosecuted.
4. My two concerns about the proposals are
first, that J am concerned that the Attorney General might have
or be perceived as having a conflict of interest if he has to
decide if a corruption offence can be brought against a politician.
Would it be better for clause 17(1) of the draft Bill to require
the consent of the Attorney General or the Director of Public
Prosecutions, provided that he can only delegate this duty to
certain specified senior officials?
5. Second, although the Law Commission proposal
and the draft Bill both refer to "functions performed for
the public" (see clause 7), I wonder if that wording is sufficiently
clear. Do privatised bodies perform functions "for the public"
or for its shareholders or both? In addition, in its dealings
with its employees, does a local authority performs functions
for the public or for the benefit of its employees or both?
6. It might well be that this issue will
have to he a question left to juries; if that is the case, those
responsible for prosecuting might have difficulties in making
decisions. I suspect that it might not be possible for the new
corruption offences to have a more detailed definition of functions
"performed for the public" In any event, this problem
ought not to prevent the present admirable proposals being implemented.
7. The present law on misuse of public office
is in a very unsatisfactory state as the Committee on Standards
in Public Life reported. Lord Nolan, who was then its Chairman
asked me to take forward the proposals of reforming this Committee
and my proposals were then considered by an Inter-Departmental
Committee. Although something has to he done about the present
unsatisfactory law on misuse of public office, the implementation
of new corruption legislation should not be delayed while changes
to the law on misuse of public office are being considered.