Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 599-619)


10 JUNE 2003

  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 at the time of 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 some 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 in place a sensible law of corruption and we sought to learn from mistakes that had been made in the past. It also fitted in with the general policy of the Law Commission in codifying law. When it was first suggested that we ought to look at this area, I took a number of soundings from various bodies to see if they thought it was worthwhile examining corruption 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 we received meant that we decided that it was proper and appropriate to give high priority to reforming the law on corruption. That is what we did, and we found that when we produced our consultation paper that provoked a great deal of interest which again reinforced the view that there had to be some change to the present law.

  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 the law of corruption. We picked up information about the problems with the corruption law. We then decided to see how it would be fair to get a proper and fair balance in this branch of the law. Above all we were very concerned that people ought to be able to have some idea as to whether or not conduct they were committing would be criminal. The clear message that we got back from everybody was that uncertainty 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 but 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". It was necessary actually to spell out what corruption meant. Once we did that, it 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 clauses 5 and 6 and 7, particularly clause 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 clause 5 really is a bit complicated.

  Mr Justice Silber: 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 a comprehensive statute 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 or, if you even look at the powers of criminal courts, the provisions are more complex than the draft Bill. If one does take some time, and I agree that it is not necessary on the first or second reading, it is possible to look at facts and determine whether they come within the legislation. I ought to say that I do not take credit for drafting the Bill. We were responsible for formulating the policy. It was the parliamentary draftsmen who took it further. Whether or not it could be expressed more clearly is something on which I could not comment.

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 clauses 1, 2, 3 and particularly clause 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 someone 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 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 on the basis that it is corrupt.

  Lord Waddington: I am not sure about that. Surely most 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. You have to look into it on that basis as that is distorting the market but that is not what corruption is about. Corruption is actually striking at interfering with a 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, 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 any experience of drafting and so 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 just been made to me about the difficulties in understanding the draft law, no doubt the draftsman would have to think of a way of dealing with those concerns.

  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 corruption 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 this was all done a long while ago 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.

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