Examination of Witness (Questions 660-679)|
10 JUNE 2003
Q660 Dr Turner: My recollection is
that the witness told us that other countries in their legislation
have pursued the question of undue reward, advantage, etc, as
has been suggested earlier.
Mr Justice Silber: Yes. As I say,
I do not know, but in order to do it somebody would have to let
me have copies of the OECD documentation.
Q661 Chairman: We will do that. Can
I just ask you about something you dealt with fairly fully in
your paper? At the beginning of this inquiry we were told by some
people that the South African model was one that we should follow.
There was quite a lot of support for that; in other words, that
we should have separate offences precisely defined and people
would know exactly where they were. Could you tell us again why
you thought that was not a good idea? Did you consider something
Mr Justice Silber: Yes. We considered
very clearly as to whether we ought to have separate offences.
Indeed, that was very much the policy behind the Theft Act 1968,
with a whole series of different offences, and a residual offence
of theft. We came to the conclusion that there are so many different
types of corruption that nothing would really be gained by having
separate offences. We also were very much influenced by the fact
that it must be the aim of every legal system to have as few criminal
offences as possible rather than vast numbers of them. I would
be very strongly against using the definition of "corruptly"
in the South African Bill which is so wide and so unclear as to
be of no value at all. It would make it impossible to predict
what conduct would constitute the offence and what would not.
One which did strike us when we analysed where people said that
the new criminal law on corruption should bite was just how many
different areas it came in and therefore, instead of having all
those different instances, which were very wide, all round the
private and public sectors, we thought the best thing was that
we could do it in one offence and we should try to do it; otherwise
there literally would be dozens of them.
Q662 Lord Campbell-Savours: In your
paper of 9 June, paragraphs 32 to 35, you use some fairly strong
language in terms of the South African example. Have you been
in discussions with them at all about their proposals for legislation?
Mr Justice Silber: No. I left
the Law Commission in 1999. The South African Bill is a new Bill.
When we prepared our proposals, we looked at all the legislation
in force in the different countries. I do not know if you have
seen the copy of our consultation document. That shows how corruption
was dealt with in different countries at the time. Therefore,
we were only looking at the existing legislation. The South African
Bill is obviously a very new development.
Q663 Lord Campbell-Savours: The language
you use suggests that the Bill as proposed in South Africa would
simply collapse when it comes into operation.
Mr Justice Silber: I am afraid
I do put it very strongly in paragraph 32 because I do feel that
the use of the word "corruptly" there is so wide that
nobody will know what is covered by it. I feel very strongly that
if we were to introduce that sort of legislation in this country
it would be a step backwards because nothing would be gained by
the legislation. One of the clearest lessons from the present
legislation is the great difficulties caused by using the word
"corruptly". Giving it an extended meaning there would
cause even more problems than we have had up until now.
Q664 Lord Campbell-Savours: Your
words are, "First, the definition of `corruptly' is so wide
that no citizen would be able to know whether conduct is covered
by it. Similarly, no prosecutor would be able to predict if some
conduct is criminal."
Mr Justice Silber: Perhaps I put
it too strongly then. There is obviously some conduct that would
be covered by it, and you would know it was covered by it but
you certainly would not know the boundaries of it, which is the
real problem about it. It is really that which is very difficult.
I do not know the meaning of the italicised words I have set out
there in my memorandum, "against the spirit of any policy
practice". With respect, I do not think anybody who is advising
would know either. Therefore, that is the great problem. The approach
that we tried to adopt was to have legislation where we endeavoured
to give some meaning to the word "corruptly".
Q665 Chairman: That takes us back
to Lord Waddington's point, especially when you have to read section
three with sections ten and five. Is it sufficiently clear for
people to know what you are gunning for, not only sufficiently
clear for the prosecution but sufficiently clear for people arranging
their business affairs?
Mr Justice Silber: I do not know
if it would be assisted by inserting in clause one, the operative
words of clause five so that you would have clearly set out what
the requirements were. If it was to say, "A person commits
an offence if he (a) confers an advantage; (b) intends the recipient
to do an act" and then (c), that used to be the way that
criminal provisions were drafted. If that was done, it might well
be much easier to follow because you would not have to keep looking
at different parts of the different provisions. For my part, I
would find it much easier if it was put in that particular form,
if it just said, "A person commits an offence if he . . ."
and then (a), (b), (c), (d) and (e) and then you moved the relative
bits from five into that clause. I would find that probably easier
rather than having to look from clause to clause.
Q666 Chairman: It is going to make
a very long clause.
Mr Justice Silber: Yes, but it
would still say "if the following four ingredients are satisfied".
Q667 Lord Waddington: You have already
said that there are other concepts in the Bill which are not exactly
helpful, where there might well have to be redrafting. I am looking
at clause seven and remembering what was said to us by Mr Staple.
I do not know whether you saw his evidence?
Mr Justice Silber: Yes, I did.
Q668 Lord Waddington: He pointed
out that if, under an arrangement with the government, a private
toll was operating the person who received the toll might be committing
a criminal offence because he was performing a function for the
public, which is not completely daft when you come to think of
it because he is performing the function only because of an arrangement
made between the government and the private toll operator. When
you mentioned earlier that there perhaps was room for some refinement
of this reference to functions performed for the public, I wondered
whether that was not an example of the need for a change.
Mr Justice Silber: It might well
be. My instinctive reaction, on the example that you give, was
that a private function was being performed, but that might be
a matter clarified on the drafting of it. It would be a matter
which, by some sort of definition section, could be dealt with.
I think I said in my first note that I was a bit worried about
Q669 Lord Carlisle of Bucklow: In
paragraph 22 of your paper you say that the Law Commission endeavours
to produce offences which are as easily comprehensible as possible
in the light of the subject matter to be dealt with. You go on
to say, "Unfortunately, the concepts required to establish
a threshold for criminality involved in corruption offences are
much more complex and consequently much more difficult to express
than those in, say, assault cases." Are you satisfied you
have the threshold right in the end, or is there still a situation
where we may be criminalising a lot of conduct which the average
individual would not look upon as criminal?
Mr Justice Silber: I do not think
it does criminalise matters which ought not to be criminalised,
on my reading of it. The type of illustration that George Staple
gave is something where that is a private function matter.
Q670 Lord Carlisle of Bucklow: But
you do agree that there is a difficulty with getting the threshold
of criminality right?
Mr Justice Silber: Yes. The real
difficulty is of working out what the litmus test should be for
Q671 Lord Waddington: This Bill would
appear to criminalise what people call facilitation payments and
there is a world of difference, one would have thought, between
a payment to somebody to get a service unfairly and against the
interests of others and a payment made to get your legal rights.
I keep quoting my baggage handler. I am entitled to my bag. That
fellow's ordinary duty is not to go behind the carousel and hunt
for Waddington's bag but if I slip him £10 in order to go
behind the carousel and get the bag am I not right that that is
a criminal offence under this Bill? Surely that is a fairly good
Mr Justice Silber: I am not sure
it is. It depends what his duties actually are. I would be concerned
if that form of conduct was a permissible form of conduct.
Lord Waddington: It would appear to be
so because it is not in the course of his ordinary duty to take
tips from members of the public and I have asked him to do a job
which is not his ordinary job. He is not normally in front of
the carousel. He is usually behind it, but I see him so I say,
"Go behind and get my bag. I am in a terrible hurry."
I challenge you to say that that is not a criminal offence under
this Bill. I think it is.
Baroness Whitaker: I suggest it might
be correctly so because in so doing he has not got my bag and
I am in just as much of a hurry as you are.
Lord Waddington: Baroness Whitaker is
suggesting it ought to be a criminal offence. It seems to be a
criminal offence to me but I do not think that all the public
Q672 Chairman: Baroness Whitaker
may have a certain amount of support. Could I ask a question on
clause seven? The consent of the principal is, in certain circumstances,
to be a defence. Do you see any difficulties in practice with
Mr Justice Silber: No, I do not
Q673 Chairman: Is it going to mean
that people get off when they should not get off?
Mr Justice Silber: I do not think
so. There are a lot of cases where there might be some benefit
given and the principal is quite happy about it. This goes back
to the whole function of the law on corruption.
Q674 Chairman: If you confine it
to principal/agent and a breach of loyalty only for principal
and agent, of course you exclude a lot of other things which some
people would think should be included.
Mr Justice Silber: Knowledge of
all the circumstances and permitting something to be done in that
way, yes. In a lot of cases, it might well form part of the person's
pay package that they do get benefits of that sort.
Q675 Baroness Whitaker: The estate
agent I deal with owns his own firm. He is the principal. I offer
him money for his own pocket, not to go into the firm, not as
commission, if he takes my bid for a house which is a little lower
than another one he is offered, so I get my house at a lower price
and he gets quite a nice present. That appears not to be corrupt.
Mr Justice Silber: Yes, it would
Baroness Whitaker: Is it? It is an entirely
private transaction and the principal consents. He is the principal.
He has not put this payment through the books. He has just kept
Q676 Mr Stinchcombe: Is he not the
agent and the vendor as well?
Mr Justice Silber: He is. That
is precisely the problem with that. The vendor normally pays the
commission and therefore that would mean that
Q677 Baroness Whitaker: So that is
Mr Justice Silber: Yes.
Q678 Chairman: We would be very glad
if you would send us your written comments on the topics you have
mentioned and indeed anything else you feel worth mentioning.
Mr Justice Silber: If there is
anything else that the Committee thinks I could help with, I would
be delighted to try to do so.
Q679 Chairman: It may well be that
there will be other things we would like to ask you and we will
put those in writing.
Mr Justice Silber: I would be
flattered if you did so.
Chairman: We are very grateful to you
for coming today.