England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/12/2013

The Lord Chief Justice of England and Wales:

Introduction and factual background

1. In this appeal the appellants (the prosecution) challenge the ruling made by a judge of the Crown Court in relation to what the prosecution has to prove under s.1 of the Prevention of Corruption Act 1906 (the 1906 Act). The respondents (the defendants) are indicted with conspiracy, "corruptly to give agents" of the tax authorities of a State in the Commonwealth a substantial sum of money as an inducement to show favours to a company in relation to the calculation of tax owed by that company to the tax authorities.
2. The judge held that it was necessary for the prosecution to prove that the agents of the tax authorities did not have the consent of the tax authorities, as their employer or principal, to receive the sum of money or other consideration.
3. In making that ruling the judge followed his decision in an earlier case, where the defendant was D. In that case D is indicted for conspiracy with the chairman of a corporation in the Middle East to make corrupt payments to agents of the corporation and to accept, as agents of the corporation, an inducement for showing favour to D in relation to the supply of goods and services to the corporation. We are not concerned with the correctness of the judge's ruling in that case as no appeal was brought against it. Those appearing in D were permitted to intervene in the appeal so as to assist the court in relation to any issues that might affect that case.
4. S.1 of the 1906 Act has been repealed by the Bribery Act 2010. The Serious Fraud Office is, however, pursuing a number of prosecutions in respect of matters occurring prior to the coming into force of that Act, particularly in respect of the bribery of foreign officials.
5. That is because, by an amendment made to s.1 by the Anti-terrorism, Crime and Security Act 2001, the Act was extended so that its scope included circumstances where the affairs of the principal had no connection with the United Kingdom or the agent's functions had no connection with the United Kingdom or were carried out in a territory outside the United Kingdom. That amendment was made to comply with the obligations of the United Kingdom under the OECD convention on Combating Bribery of Foreign Public Officials and International Business Transactions.
6. As the Serious Fraud Office is pursuing these prosecutions it considered it important to clarify whether the ruling made by the judge in the present case was correct as it would affect other prosecutions.
7. In the light of the fact, therefore, that our decision in this matter will affect other prosecutions, we have confined our statement of facts to what we have set out above so that this judgment can be made public without awaiting the conclusion of the trials in the case of J and D.

The issue

8. Before turning to the detail of the 1906 Act and some Commonwealth authority, it is necessary briefly to set out the nature of the issue.

i) It was contended by Mr Andrew Edis QC on behalf of the prosecution that the prosecution had to prove the ingredients set out in the statute – the defendant was an agent, he accepted the consideration, that this was for the prohibited purpose and that it was done corruptly. It was for the jury, looking at all the facts, to determine whether the payment or other advantage made or accepted was made "corruptly". There might be submissions of law on the evidence adduced in the course of the prosecution case as to whether a jury, properly directed, was entitled to find that the payment had been made or received corruptly, but it was not necessary to provide a gloss to that term. It was not necessary to show that it was contrary to the interests of his principal or that the payment had been made without the knowledge and consent of the principal.

ii) On behalf of the defendants it was contended by Mr Hugo Keith QC that the term, "corruptly" connoted secrecy. As the 1906 Act had been formulated in terms of principal and agent, it must follow that a payment could not be secret if it was made with the knowledge and consent of the principal. Thus it must be for the prosecution to prove, as part of its case, the specific ingredient of lack of knowledge or informed consent by the principal; in essence the element of corruption was the doing of the act prohibited without having first made full disclosure to the principal and obtaining his informed consent.

The origins of the 1906 Act

9. The history of the provisions relating to corruption before the 2010 Act are set out in the Law Commission Reports made prior to the enactment of the 2010 Act Legislating the Criminal Code (Consultation Papers 145 (1997), BAILII: [1997] EWLC C145 and 248 (1998), BAILII: [1998] EWLC 248) and Reforming Bribery (Consultation Paper 185 (2007) and Report No. 313 (2008), BAILII: [2008] EWLC 313). There are also two very helpful articles: Corruption in England and Wales: An Historical Analysis by Mr Fennell and Mr Thomas of the Cardiff Law School published in 1983 in 11 International Journal of Sociology and Law 167 and Bribery and Corruption by Professor David Lanham published in Essays in Honour of Professor Sir John Smith (1987). It is only necessary to set out as much of that history as is necessary to explain the arguments in the case.

(i) The common law

10. At common law bribery and corruption were criminal offences. A single definition is not easy, but the general principles are set out in Russell on Crime, 12^th edition,1964, at page 381 in the following terms:

"Bribery is the receiving or offering of any undue reward by or to any person whatsoever ... in order to influence his behaviour in an official situation and incline him to act contrary to the known rules of honesty and integrity."

11. At the end of the nineteenth century and beginning of the twentieth century Parliament, without abolishing the common law offence, passed three statutes. Although the issue arises only in relation to one of these, it is necessary to refer to all three.

(ii) The Public Bodies Corrupt Practices Act 1889

12. The first was The Public Bodies Corrupt Practices Act 1889. It was enacted as a result of evidence of corrupt practices adduced before a Royal Commission into a local government authority for London, the Metropolitan Board of Works. It made it an offence for anyone, "corruptly" to solicit or receive for himself or any other person "any gift, loan, fee, reward or advantage whatsoever as an inducement to or reward for or otherwise on account of any member, officer or servant of a public body" for doing or forbearing to do anything in respect of any matter with which the public body was concerned.
13. The Act defined a public body in terms of a defined category of local authorities and the local agencies that at that time were connected to local government. Bribery in commerce and central government were not within its scope.

(iii) The 1906 Act

14. The second enactment was the 1906 Act. It is clear from the materials before us that the mischief at which the provision was principally aimed was criminalising the bribery of agents in commercial transactions, particularly commissions paid to the agent without the knowledge and informed consent of his principal. These were and are commonly referred to as secret commissions.
15. It was by then already well established in the courts of equity that whatever might be the view of some of those engaged in commerce, receipt of a commission not authorised by the principal was a breach of the fiduciary duties of the agent – see for example Parker v McKenna (1874) LR 10 Ch App 96 at 118 (Lord Cairns LC) and at 124 (James LJ) and the cases set out in Bowstead and Reynolds on Agency (19th edition (2013) at paragraphs 6-084 to 6-089. If an agent was remunerated by commission paid by the other party to the transaction and not his principal, this was unlawful absent informed agreement by the principal, expressly or by implication or by the custom or practice of the trade: see Great Western Insurance v Cunliffe (1874) LR 9 Ch App 525 at 529 and 537, a decision on the insurance industry where brokers, although agents of the assured, were paid not by the assured but by the underwriter.
16. Whatever might have been or may still be the commercial practice of some, the position in law was and remains clear. A vivid contemporary illustration is set out in the Law Relating to Secret Commissions and Bribes (Christmas Boxes Gratuities etc): the Prevention of Corruption Act 1906 by Albert Crew (Pitman, 1913):

"In 1877, Jessel, M.R., tried an action brought by a firm of merchants at Bombay which complained that their shipping agent in Lancashire had systematically been receiving two invoices, one which he sent out to India, the other, the real invoice, which he retained. He asked if there were any answer to the charge, and the reply was that the practice was universal throughout the whole shipping trade in Lancashire, and prevalent elsewhere. "I have a mass of evidence," counsel said. "There are a large number of most respectable people in court to give evidence in proof that the practice is universal." Sir George Jessel replied: "You can send those respectable people home; they have come to prove an iniquitous practice, and the sooner they leave the court the better."

We might observe that from time to time some of those in commerce have chosen and still choose to ignore these very clear legal principles relating to a practice truly described as iniquitous.

17. In introducing the bill that became the 1906 Act, the then Solicitor General, Sir William Robson, stated on 3 April 1906 that it was aimed at dealing with the dishonest giving or accepting of money or other consideration to or by agents with the view of making a private profit unknown to the principal. This was entirely in accordance with the underlying law relating to the fiduciary obligations of agents established in the cases to which we have referred.
18. However, the 1906 Act not only covered commercial agents, but brought those serving under the Crown within its scope. S.1 as originally enacted, provided:

"(1) If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business; or

If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business

…

he shall be guilty of a misdemeanour

(2) For the purposes of this Act the expression "consideration" includes valuable consideration of any kind; the expression "agent" includes any person employed by or acting for another; and the expression "principal" includes an employer

(3) A person serving under the Crown or under any corporation or any municipal, borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act. "

19. The mischief at which the extension to those serving under the Crown was aimed was the limited scope of those included within the Public Bodies Corrupt Practices Act 1889 (see Fennell and Thomas at page 174). The scope as regards those serving under the Crown was wide; it was held to include an additional registrar of births, deaths and marriages, even though he was not appointed or paid by the Crown: Barrett [1976] 1 WLR 946.

(iv) The Prevention of Corruption Act 1916

20. The third enactment was the Prevention of Corruption Act 1916. It was passed after a scandal in the War Office where its inspectors of merchandise had accepted bribes. It provided that where a transaction was a contract or proposed contract with a Government Department or any public body, any gift received by a person in the employment of the government or public body from someone who had or wished to obtain a contract, was a payment presumed to be corrupt, unless the contrary was proved.

(v) The amendment to the three statutes in 2001

21. The only further legislative provision to which it is necessary to refer is s.108 of the Anti-terrorism, Crime and Security Act 2001 which inserted into the 1906 Act a further subsection to s.1 in the following terms:

"(4) for the purposes of this Act it is immaterial if –

(a) the principal's affairs or business have no connection with the United Kingdom and are conducted in a country or territory outside the United Kingdom;

(b) the agent's functions have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom."

Corresponding changes were made to the 1889 and 1916 Acts.

The issue of construction

(i) The conclusion of the judge in R v D

22. The judge concluded in the earlier case of R v D:

"I have come to the conclusion that the element of secrecy is an essential element in this offence and must be inherent in the word "corruptly". Thus it is for the Crown to prove that the defendant's principal did not know or consent to the relevant purpose"

23. It is necessary to examine this conclusion by first considering the language of the 1906 Act, second by considering whether there is anything that can be derived from the Act that shows this ingredient (as spelt out by the judge) was inherent in the word "corruptly" and lastly by considering other material and the Commonwealth authorities.

(ii) The ordinary meaning of the statute

24. The issue before us is one of statutory construction. In our judgment the words are clear. It has to be shown that the payment was made corruptly and for the prohibited purpose. In R v Wellburn (1979) 69 Cr App R 254 this court made clear what is thought was meant by the term "corruptly":

"The recorder directed the jury as follows: "Corruptly is a simple English adverb and I am not going to explain it to you except to say that it does not mean dishonestly. It is a different word. It means purposefully doing an act which the law forbids as tending to corrupt.

In directing the jury as he did the recorder adopted the words used by Willes J. when giving his opinion to the House of Lords in Cooper v. Slade (1858) 6 H.L.Cas. 746, which was a case concerned with the Corrupt Practices Prevention Act 1854. What Willes J. said was adopted and followed by the Court of Criminal Appeal in Smith (1960) 44 Cr.App.R. 55; [1960] 2 Q.B. 423 (see Lord Parker C.J. at p. 62 and p. 429 respectively) in which the indictment charged an offence under the Public Bodies Corrupt Practices Act 1889.

In our judgment the recorder was right to follow the construction of the word "corruptly" which was approved in Smith (supra). Nothing is to be gained by using variations for statutory words in ordinary usage unless the context so requires and it does not do so in the 1906 Act. A jury will have no difficulty in deciding whether an accused has corruptly accepted or obtained a gift. The mischief aimed at by the modern statutes dealing with corruption is to prevent agents and public servants being put in positions of temptation."

25. The language of the Act does not require anything more than proof that the payment for the prohibited purpose was made corruptly. There is self-evidently no language requiring that the payment for the prohibited purpose has to be paid or received secretly and without the knowledge and informed consent of the principal. Nor is there anything in the word "corruptly" taken by itself that implies that the payment has to be secret or without the knowledge and informed consent of the principal. It is an ordinary word with an ordinary meaning and nothing in the word itself can justify engrafting the suggested ingredient onto it.

(ii) The framing of the 1906 Act in terms of principal and agent

26. It is contended, however, that the court should imply the suggested ingredient if the word corruptly is placed in the context of the decision to frame the legislation in terms of principal and agent and in the context of the mischief at which the 1906 Act was aimed.
27. It is clear, as we have said, that the 1906 Act was primarily directed at commercial agents. The law was clear as we have set out at paragraph 15. Parliament could have legislated in different terms and provided for proof of a lack of informed consent, but it did not. It simply required that the payment be corruptly made or received.
28. There might well be cases where the defendant who is a commercial agent avers that his principal knew of the payment as he had made full disclosure and gave his informed consent; or the defendant might aver that he honestly believed that the agent's principal knew and gave his informed consent to the receipt of the payment by his agent. It would in such a case be necessary when deciding whether the payment was or was not made or received corruptly for the jury to consider that evidence. However, there is no requirement that the prosecution specifically prove the lack of knowledge and informed consent of the principal separately.
29. The reason why Parliament did not make that a separate ingredient and why such an ingredient cannot be implied is clear. The 1906 Act expressly included in the definition of an agent a person serving under the Crown or a local authority. Although the informed consent of the actual principal after full disclosure would in the case of a commercial agent usually have the consequence that the payment was not made corruptly, it would not be a defence that someone in the Government Department or local authority had knowledge of a payment to its employee or agent by another party for the prohibited purpose and purported to consent to that payment. That is because such a payment to an agent or employee cannot be authorised if it is made for the prohibited purpose. If, in the present case, the prosecution proved that the payment had been made to an employee of HM Commissioners of Revenue and Customs for the prohibited purpose, it would not matter that the senior official to whom the agent or employee was responsible knew of the payment and purported to consent to it, because consent cannot be given to a payment to a public official in the UK which is made for the prohibited purpose.
30. Thus when the judge against whose ruling this appeal is brought stated that it was "the secrecy of the payments which was the wrong to which the offence was to be aimed", he had failed to take into account the fact that the Act covered those serving under the Crown. The Act was drafted as it was so that what was necessary to prove was corruption whether the case arose in a transaction between commercial persons or in relation to a public body or the state. The informed consent of the actual principal (after full disclosure) might be relevant in cases relating to commercial agents, but not to those in public service in the UK. It therefore cannot be implied or inherent in the Act that the prosecution has to prove that the principal did not know of and did not consent to the payment.
31. When the Act was extended as we have set out at paragraph 21 above to cover agents and principals overseas the position remained the same.
32. It follows that in most cases it will generally be sufficient for the prosecution to prove the making of the payment for the prohibited purpose to the agent (or the receipt of such a payment by the agent) in circumstances where the jury can properly infer it was corrupt. Thus in the case of a commercial agent where the making of the payment for the prohibited purpose is proved, the question of whether the principal knew and gave his informed consent after full disclosure will not ordinarily arise, unless it is part of the defence case. When the consent of the principal is alleged and there is a sufficient evidential basis for it, then it will be an issue for the jury to consider when deciding whether the prosecution has proved payment was made corruptly. In cases where the principal or agent are overseas, more complex issues may arise (as may be the case in R v D) but what the prosecution has to prove remains the same. It has to prove that the payment for the prohibited purpose was made corruptly.
33. The judge in his judgment in D stated that by far the greatest assistance he had received came from the decision of the Court of Appeal in Kensington International v Republic of Congo [2007] EWCA Civ 1128; [2008] 1 WLR 1144.

i) In that case, the relevant issue was whether a well-known oil trading company which was alleged to have made payments to employees or representatives of the defendant government for favours in connection with contracts for the sale and purchase of oil could rely on the privilege against self-incrimination. The company could not do so under s.13 of the Fraud Act 2006 if its conduct gave rise to offences under that Act or related offences. The related offences were said to be common law bribery and offences under the 1889 and 1906 Acts. The company contended that these were not related offences for the purposes of the Fraud Act 2006, as these offences did not involve any form of fraudulent conduct or none that involved proof of dishonesty.

ii) Moore-Bick LJ giving the main judgment concluded in respect of the 1906 Act that:

"Although dishonesty as such need not be proved, the word "corruptly" signifies that the circumstances in which the gift was given were such that it had a tendency to corrupt, that is, to suborn the agent to disregard his duty and act contrary to the interests of his principal, thereby causing him harm. If the agent is moved by the gift to act contrary to his principal's interests, his conduct is of the same quality as that covered by s. 4 and does in my view involve deception. It is for that reason, I think, that one finds in the authorities references to fraud in the context of bribery…"

iii) He considered that offering a bribe with the intention that it be acted upon involved a form of fraudulent conduct or purpose and therefore was a related offence under the Fraud Act 2006 (see paragraph 62). He concluded at paragraph 63 that the submission of the oil trading company was wrong for two reasons:

"The first is the fact that the only purpose of offering or giving a bribe is to undermine the agent's loyalty to his principal and persuade him to abandon his duty. That is the essence of the corruption and therefore any offer of a bribe can only be intended to have that corrupting effect. It also involves deception in the sense described earlier. The second is the fact that a bribe necessarily exposes the principal (or, in the case of bribery of a public official, the public) to the risk of harm, even if it does not lead to actual harm. In my view, therefore, offering or giving a bribe necessarily involves a form of fraudulent conduct or purpose [under the Fraud Act 2006]."

iv) The judge did not explain why he found the case of such assistance. Mr Hugo Keith QC on behalf of the defendants, however, contended the case demonstrated that an element of secrecy was essential to the offence under s.1 of the 1906 Act, as the purpose of offering a bribe was to undermine the agent's duty of loyalty.

v) There is, in our view, nothing in that case which supports such a conclusion. The issue related to the bribery of an overseas government, the Republic of the Congo. The judgment of Moore-Bick LJ was an entirely conventional analysis, citing classic authorities. He applied that analysis to officials of the Congolese State who were the alleged recipients of the bribes. He said no more than that paying sums to public officials for a prohibited purpose undermined the duty and loyalty of those officials to the State. It was corrupt and involved deception or a fraudulent purpose. There was no argument to the court that the payments would not be bribes if the Congolese government knew and consented to them or that they were not made secretly. Such an argument was not made because it would self-evidently have been immaterial, as States do not consent to payments to State officials by parties seeking contracts with the State. The judgment therefore provides no support for the judge's view or the contention advanced by Mr Keith QC.

(iii) Other materials

34. The defendants relied for some of their argument on the discussions in the various Law Commission reports to which we have referred; although the discussions were no doubt of considerable assistance in the formulation of the amended statutory regime as set out in the Bribery Act 2010, it did not materially assist the issues of construction of the 1906 Act.
35. Nor did we find of any assistance the views expressed by the then Attorney General or the OECD in relation to a proposed prosecution of BAE Systems in connection with its Saudi Arabian contracts in 2007; the investigation was discontinued. The question of whether the alleged consent of those in Saudi Arabia might mean no offence was committed did not arise for decision in the litigation R (Corner House) v SFO [2008] EWHC 714 (Admin) and [2008] UKHL 60.
36. Nor, in the light of our decision on the construction of the 1906 Act, is it necessary for us to consider the prosecution's alternative argument that the amendment to the 1906 Act in 2001 extending its scope to the bribery of foreign officials made it clear that consent did not have to be proved by the prosecution.

(iv) The Commonwealth Authorities

37. The respondents relied on decisions of the Commonwealth courts on very similar Commonwealth legislation.

(a) Canada

38. In Canada, s.426 of the Criminal Code under Part X entitled "Fraudulent Transactions relating to Contracts and Trade" provides:

"Secret Commissions

(1) Every one commits an offence who

(a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent's principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent's principal;"

39. In R v Morris (1988) 64 Sask 98 (Saskatchewan Court of Appeal), R v Arnold [1991] NSJ No 166 (Supreme Court of Nova Scotia) and R v Kelly [1992] 2 SCR 170 (Supreme Court of Canada), the courts considered the provision of s.426 in the context of payments made to commercial agents. In the Saskatchewan case the court stated that if the agent was paid with the full knowledge and consent of his principal, then no offence was made out because it was not a secret commission. In the Nova Scotia case the court observed that it was the agent's non-disclosure to his principal of the receipt of the reward that made the conduct corrupt; a full disclosure of the circumstances by the agent to the principal made his conduct non culpable and a complete defence. In that case in the majority judgment of the Supreme Court of Canada it was said that corruptly in s.426 denoted secrecy as the corrupting element of the offence; it was the failure to disclose that made it impossible for the principal to determine whether to act on the advice of the agent; it was therefore the non-disclosure that made the receipt of the commission corrupt (see pages 187-9).
40. However, as we have pointed out, these cases all relate to commercial agents. There are different provisions of the Code set out in Part IV under the heading "Corruption and Disobedience" in sections 119 and following which deal with the bribery of officials. It is perhaps therefore unsurprising that the Canadian cases on which the respondents place such reliance all arise in the context of the payment of commissions in the context of commercial agents. The UK legislation in contradistinction covers both commercial agents and public officers.

(b) Australia

41. The South Australia Secret Commissions Act 1920 is worded similarly to the 1906 Act and the definition of agent includes a person serving under the Crown. In C v Johnson [1967] SASR 279, the South Australian Supreme Court considered whether a regulatory authority with power to disqualify a salesman of land for an offence involving dishonesty could disqualify him on the basis of his conviction for an offence under that Act. The regulatory authority considered that the conviction was one for dishonesty. The court held that it did. Bray CJ observed:

"On normal legal principles one would expect that word [corruptly] to add something to the meaning of the section. If it were not there, for example, it might be an offence for an agent to solicit a commission from a party with whom the principal was dealing or expected to deal, even with the consent and approval of the principal"

42. In R v Turner [2001] WASCA 344 the Supreme Court of Western Australia reviewed a number of decisions of other states, including C v Johnson in determining the meaning of corruptly in similar legislation, again in the context of the bribery of a commercial agent. Burchett AUJ, giving the lead judgment observed:

"In my opinion, these authorities confirm that the sections are directed at the specified conduct done with the intention (properly described as corrupt) of seducing an agent from the duty owed to his principal or of rewarding the forsaking of that duty in favour of another. Consistently with this view of the sections, they will not apply where the principal is known or believed to have assented."

43. Both of these cases deal with commercial agents; the judges in making these observations did not have in mind the position of a public official – such as a person serving under the Crown. As the cases therefore do not grapple with the issue before us, in our view these cases are for that reason of very limited, if any, assistance.

Conclusion

44. For the reasons we have set out the prosecution does not have to prove as an ingredient of the offences under s.1 of the 1906 Act that the principal did not know of the payment and did not give his informed consent. The prosecution need do no more than prove that the payment made for the prohibited purpose was made corruptly.
45. For example, in determining whether the payment was made corruptly in the case of transactions between commercial agents and principals any evidence relating to what was disclosed to the principal and what the principal knew and any informed consent may, as we have stated, be highly material to the issue of whether they acted corruptly. In such cases, the evidential inquiry may give rise to the factual issue of identifying the actual principal who is entitled to give informed consent after full disclosure. In the case of an overseas body corporate this may raise difficult factual inquiries in the light of the applicable law as determined by the judge. These are, however, all matters of evidence that may go to the issue of whether the payment for the prohibited purpose in transactions between commercial agents and commercial principals was made or received corruptly. However, by way of a contrary example, where there was a payment to a public official in the UK for the prohibited purpose, evidence as to knowledge and consent will, for the reasons we have given, not arise. What the Crown has to prove remains the same in each case – that the payment for the prohibited purpose was made corruptly; evidence as to the informed consent of the actual principal may or may not be material or highly material depending on the facts of the case.
46. The appeal is therefore allowed and the ruling of the judge set aside.