Examination of Witnesses (Questions 368
- 379)
WEDNESDAY 10 JUNE 2009
MR KEIR
STARMER, MR
RICHARD ALDERMAN
AND DETECTIVE
CHIEF SUPERINTENDENT
STEVE HEAD
Q368 Chairman: Good afternoon to
you all. Thank you for coming. There has been a great deal of
discussion about the prosecution of these cases and you are the
perfect people to ask questions about it. We look forward to your
answers. Did you have a list of the questions?
Detective Chief Superintendent Head:
Yes, thank you.
Q369 Chairman:
The first one is the way in which the Law Commission has suggested
the drafting of this: improper performance, expectation of good
faith, impartiality and trust. Do you see that those are manageable
in terms of prosecution presentation?
Mr Starmer: We do think that they
are perfectly manageable. They are terms that ought to be clear
enough, with directions from a judge to juries, to be able to
approach the cases in a sensible way. Obviously there is an element
such as dishonesty, but we do not foresee major problems with
the wording.
Mr Alderman: I agree with that.
There is a precedent in the recent Fraud Act for instance where
there was some debate about whether or not the context of abuse
of position was sufficiently clear for the jury. The fact is that
juries have not had particular difficulty with it and I think
it is the same here. Jurors can be trusted to use their experience
and their common sense in assessing the tests here.
Detective Chief Superintendent Head:
From a police perspective, we completely concur with that. Experience
has shown that juries will not have a problem with it and certainly
from our perspective we do not anticipate any difficulty.
Chairman: That is very helpful. Otherwise,
it would pull the rug out from under the basis of the whole legislation.
I am very glad to hear those answers.
Q370 Lord Lyell of Markyate: Might
I just explore the word "improper"? If you look at the
Oxford English Dictionary, there are about ten different
meanings given, of which only one rather tangentially suggests
that it really includes criminality. Is this not likely to lead
to some confusion? The Director of Public Prosecutions in his
helpful statement touches on this. What is wrong with the word
"corruptly"? The Law Commission noted that bribery is
generally understood by 95 per cent of the population, with which
I agree. During my ten years of experience I do not think we had
any great difficulty in obtaining successful prosecutions for
fraud or corruption. They are both really often one branch or
another. There are two forms of fraud, in my view. There is hand
in the till and there are back hands. That pretty well sums it
up and the jury understand that sort of thing extremely well.
Now we are introducing a Bill and, while I can well understand
the reasons for it and I have read all the academic material,
including the Law Commission's, what is wrong with the word "corruptly"?
After all, we are talking about some of the most serious offences
in the statute book.
Mr Starmer: I do not think I would
be saying there is anything wrong with the word "corruptly".
We do not come to this on the basis that there are problems with
the law as it is that cannot be overcome. As to the new approach
where you identify the functions, the conditions and then the
breach, whilst that introduces a stepped approach, I do not see
that it will make it unworkable or more difficult for a jury.
I do not come to it on the basis that "corruptly" was
not a perfectly good approach in the past but equally I cannot
see that, properly directed, a jury would have too much difficulty
with the stepped approach that this proposed legislation has set
out.
Q371 Lord Lyell of Markyate: You
say in your helpful statement that we talk about modernisation
but these three statutes have on the whole worked very well. Reading
again the Law Commission's statement, there is reference to the
fact that some of these words have had to be judicially interpreted
and, in one case, the word "dishonesty" was said to
be relevant and in another it was said not to be relevant, but
would it be possible for the two Directors to let the Committee
have a brief note of which cases have caused any trouble over
the last 100 years?
Mr Starmer: That is not a problem
at all.
Q372 Lord Thomas of Gresford: Under
clause one, case one introduces the concept of P intending the
advantage to induce a person to perform improperly a function
or activity to which section three applies. "Improperly"
is central to the concept. If we look at clause three and at sub-clause
(6) a function or activity is performed improperly if it is performed
in breach of a relevant expectation. The word "improperly"
is cut down to being in breach of a relevant expectation and those
expectations are set out in sub-clauses (3), (4) and (5), an expectation
that someone is going to perform a function in good faith or impartially,
or is in a position of trust, by virtue of performing it. Another
approach would be to say that it catches someone who has a duty
to act in good faith and to act impartially and not in breach
of trust. Does this question of performing something in breach
of a relevant expectation mean something rather different than
a duty to act in good faith or impartially? Does it introduce
some sort of an objective approach to what is expected of a person
rather than what is proved to be his duty? Does that cause any
problems?
Mr Starmer: I had understood this
to be intended to introduce an objective test when read with sub-clause
(8). Therefore, the expectation is to be judged as set out in
sub-clause (8), " ... what a reasonable person would expect."
Our approach to clause three is on the basis that that means the
expectation is not tied to the locality in which the function
is carried out. It is not an expectation in country X, Y or Z.
It is an expectation that is objective and not tied to local conditions.
On that reading, I think it is an important part of clause three.
Q373 Lord Thomas of Gresford: If
there is no duty to act fairly or impartially in country X but
a jury thinks that it would be reasonable to expect a person in
the position of the person in country X to act impartially and
in good faith, whoever is concerned in paying the advantage is
guilty. Is that how you see it?
Mr Starmer: I think that is right.
The intention, as I understand it, was to ensure that somebody
could not argue in their defence that in country X you would not
expect anything other than the behaviour that resulted and therefore
there was no wrongdoing. That is an attempt to introduce that
degree of objectivity, but I accept it would have that result.
Q374 Lord Thomas of Gresford: It
widens the offence as opposed to the prosecution having to prove
a duty in the particular country for a person to act in that way.
Does that make prosecution easier for people who are paying foreign
officials or something like that?
Detective Chief Superintendent Head:
In terms of the investigation, we have liaised with the Director
and that is our interpretation of what we believe the Act is trying
to say, as has just been laid out. We believe that there will
be no difficulty for us in taking that interpretation. It may
be that you are exactly right and it will make it, for us, slightly
easier in terms of where people have previously said, "This
is how business is done in X, Y or Z." We frequently hear
that phrase in the course of our investigations. I think this
is an attempt to deal with that issue and for ourselves we do
not see any difficulty with the wording as it is.
Q375 Lord Thomas of Gresford: In
other words, you are asking people to be answerable by British
standards for their conduct in the paying of advantages?
Detective Chief Superintendent Head:
That is correct.
Q376 Mr Djanogly: The Law Commission
seems to have a slightly different bent on this. For instance,
as regards hospitality the Commission states that to the extent
that one country traditionally entertains more lavishly than is
customary in other countries, this would be evidence tending to
show that it did not mean that the executives departed from the
standard of good faith or impartiality that would be observed
by a person of moral integrity.
Detective Chief Superintendent Head:
I think that is right. From our own perspective, this is an issue
of context around each individual case. If you have legislation,
that will support us in putting something into context. The question
is reasonableness. It is there and it is clear. That might be
an issue for the Directors in terms of how a jury might interpret
that but it is for us to take it before a jury and ask them that
question.
Mr Alderman: I am not sure juries
would have particular difficulties with that. In connection with
hospitality, I think there is a quite clear distinction that I
am sure juries will be able to make between inexpensive, modest
hospitality offered to many and lavish hospitality that might
be offered to a very small number of people in the hope of getting
a contract.
Mr Starmer: I am slightly uncomfortable
with it being an English or British test as such. I think probably
I would approach it on the basis that it is a test which is not
tied to the local conditions where the function is exercised.
It is objective in the sense that it is outside those local conditions.
That allows some regard to be had to the sorts of approaches there
are around the world. It does not make it English as such but
it draws the right line between that approach and an approach
which simply says, "If you are in country X, the `reasonable
expectation' would be no more than this sort of conduct in any
event."
Q377 Lord Thomas of Gresford: You
say you are not applying English standards but of course you are
taking it before a British jury and asking them to apply their
standards, are you not? You cannot ask them to apply the standards
in another country. In addressing the jury, you would say, "You
can take into account the fact that in the foreign country this
does not raise an eyebrow".
Mr Starmer: You would address
the jury on the basis that it is an objective test of what a reasonable
person would expect. There might be some factors which would be
relevant to that evaluation, but it is not intended because it
is objective to be a test which is simply grounded in the particular
country where the function was performed. It is difficult but
I think it is an important aspect of clause three from our perspective.
Q378 Lord Sheikh: I have a slight
difficulty. I was brought up in an overseas country where it was
the norm for you to entertain your prospective customers because
hospitality and inviting people is the done thing. I am a chairman
of a public company. I always say to my staff, "Do not buy
in business. Go and present yourself." I have a difficulty
with this because conditions are different and hospitality procedures
are different. Juries may not quite appreciate how things are
done in Africa, Asia or China or wherever it is. That could perhaps
present a problem, as I see it. Have you any comments on this?
Mr Starmer: I think it depends
which clause an investigation or prosecution was brought under.
So far as clauses one and two are concerned, they are conditioned
obviously by clause three so the prosecution would still be having
to show that there was the expectation of good faith, impartiality
and trust, so it is limited to those three things, and that the
conduct was in breach of that expectation. It is quite tight in
that respect. So far as clause four is concerned, bribery of foreign,
public officials, there is the requirement to show that whatever
advantage there was was not legitimately due under the law of
the country in question. If one bears in mind the two sets of
constraints, I think it is perfectly workable.
Mr Alderman: We are concerned
to make sure that the argument that this is the way it is done
in such and such a country is not one that we ought to permit.
The focus of this is on eradicating bribery. It relates to big
payments and small payments and the focus is on how we can make
sure that corporates and individuals within the jurisdiction of
our courts live up to the expectations that society and others
have of them, in order to eradicate bribery. That is why I think
it is right that we have some objective tests here about what
is acceptable.
Q379 Lord Anderson of Swansea: I
think it was Voltaire who said that morality changes with every
degree of longitude. You cannot have surely a totally objective
test of what the average Englishman or Welshman would say because
we need a contextual analysis of the position in any other country.
How do you set about forming that contextual analysis? Would you
have experts saying, "Yes, this is the norm" or the
prosecution calling their own experts to say that it is not the
norm? Once you accept that there is scope for cultural differences,
you surely get into a very difficult context?
Mr Alderman: I would certainly
anticipate that defendants will call evidence about local conditions.
There will also be a need to have expert evidence on local laws.
It may be that the defence will call local lawyers about that
issue and the prosecution also call lawyers on that in order to
be able to understand what the system is in the other country.
It is up to the jury to form their own view on that.
Detective Chief Superintendent Head:
In the course of an investigation, I would anticipate that persons
who are spoken to in relation to this would come forward with
their defence of the fact that it is reasonable in X or in Y.
In terms of the investigation, a large number of those questions
will be asked as part of whether we go forward from here and how
we go forward from here. Local context will be put into each investigation.
| 
