Time to Stand Up for the Little Guys (& Girls)


Avid readers of this Blog, (aka gluttons for punishment) will remember my outburst last year. “Government Declares Bribery Not an Offence!”

The tenor of that little tome was to the effect that however sexy the Bribery Act 2010 might have been, it was not perceived as having much relevance, or bite, to the average Jo.

A well respected criminal QC, and good friend of mine, has described it in an article last year as a “Toothless Wonder.”

Much of the cynicism has arisen as a result of the common perception that the SFO being the principal prosecuting authority under the act, has a) no interest in, and b) no budget for, prosecuting anything but the most headline grabbing, stone cold bonkers cases that they can’t possibly lose.

There were dark mutterings from the departing Director that they were hot on the tails of a number of cases, but for now, Mum’s the word. We all await developments on that, especially in the light of the new Director’s protestations that the future of the SFO is secure, and, by implication perhaps, prosecutions are just around the corner. (So’s my Taxi apparently)

To be fair to David Green QC, as a lot of people have been pointing out, it takes time for any substantial case to be detected and investigated to the point of charge, and not being retrospective, the Bribery Act 2010 cannot apply to any act of Bribery committed before July 1st 2011.

The one single exception was the case of Munir Patel. Small Bribery if ever there was. Requests for the effecting of an improper performance of his function at £500 per time, most of which had occurred before the act came into force, but it gave the opportunity for the DPP, (NB, not the SFO) to flex his muscles and launch the very first Bribery Act prosecution.

What has happened since? Nothing but a deafening silence.

Are we to believe that no single act of Bribery, by way of offer nor request, has occurred anywhere under the jurisdiction of the Act since July 1st 2011?

Of course they have. Probably every day, but none that any public body has seen fit to investigate or prosecute. a) because they are not interested, and b) because they don’t have the money.

And yet every day of every week, in one small or not so small way, large numbers of people are suffering from the effects of bribery in circumstances that prosecutors should be taking action to protect them.

If a small shopkeeper catches someone shoplifting, and has a cctv film to prove it, then any police officer or CPS lawyer would be hard put to argue that they could not be bothered to prosecute. The public, and small shopkeepers deserve to be protected from petty criminals, which is a very important reason for the existence of the Theft Act 1968. If such offences were ignored by the authorities, a lot of small businesses would go out of business.

At least you can insure against Theft or Burglary from your premises.

So why does the same not apply to the Bribery Act?

There cannot have been a day in the months since last July when some small business has not lost a contract to a competitor as a result of behaviour by that competitor which contravened the Act.

Pundits at the time, (including the MoJ) were only too ready to declare that everyday hospitality would not offend against the act, with a whopping great hint that any hospitality would have to be well over the top before attracting the SFO’s attention. Multi Million pound “commissions” for securing Infrastructure or Armaments contracts at the very least.

So it’s one law for the rich, and no law for everyone else.

Not everyone really gives a Tuppeny Tortilla about what WalMart have been up to in Mexico, it is quite literally half a world away, yet it has grabbed all the corruption headlines here and in the USA.

Consider the fate of Average Joe with his small family firm, producing Widgets in his home town, employing as he does, a significant number of the local population. They rely on their jobs to pay their mortgages. Other local businesses in turn rely on them to spend their wages locally, to support each other.

There are bigger companies up the scale producing similar widgets, who are better placed financially to secure contracts to supply them to a customer, not because they necessarily produce a better product, but because they have more resources to “promote” them.

Having more money to pay more talented salesmen is one thing, but using more money to grease palms by whatever means, is quite another. Over lavish promotional parties or gifts, the Mulberry Pens on the table for the promotional event etc. Where is the line to be drawn?

There could be a very simple test. Suppose Average Joe does not win the supply contract. A month or so later he’s at a function attended by the purchasing manager of the firm who did not buy his widgets. Joe asks straight out why he lost the deal. Purchasing manager replies, “well your widgets were just as good. In the end my wife was particularly pleased with the Louis Vuitton bag they sent her for Christmas, Frankly that’s what swung it.”

The widgets contract was lost. Joe had to lay off half his workforce through lack of orders. The laid off employees had to sell their homes, and some local businesses suffered such a drop in trade that they had to close.

Joe goes to the police and complains. They say, “It was only a handbag, we’re not going to prosecute for that. It’s not in the public interest.” Well as we have seen, it WAS in the interest of quite a few members of the public in Joe’s home town.

A small local family building firm could have exactly the same problem. A larger contractor gets work by similar means, nothing too expensive but just enough to swing the decision. Family firm and employees out of work and homes.

To my certain knowledge, from discussions with professionals after seminars I have delivered, larger firms of surveyors are elbowing out smaller or single practitioner outfits, by means that would not bear scrutiny from a prosecuting lawyer familiar with the Act.

All of the above and still no mention of “Referral Fees.” A kickback by any other name that can secure the illegal awarding of a contract to the financial detriment of the innocent.

Now imagine what happens if a sole practitioner local Chartered Surveyor walks into his village police station and says he wants to make an allegation of Bribery against a competitor who has filched a contract from under his nose by paying a referral fee not on the basis of his own merit as a surveyor, but as the highest bidder.

“Not a police matter sir, that’s one for the civil courts,” says PC Pilate.

Well. No it isn’t, or it shouldn’t be. Why should there not be a prosecution, in just the same way as if the same competitor had broken into your office and stolen cash from the safe? It amounts to the same thing in the end, and you can’t get insurance against losing a contract by Bribery, as you could against losing money via theft.

———-

Well. I’m happy to say, now there CAN be a prosecution.

A week or so I picked up a link on Twitter to this site.

http://www.emmlegal.com/

They can explain far better than I who they are and what they do, but in a nutshell:

They are real lawyers with high level experience of fraud and related prosecutions.

They have investigative resources in depth, on tap.

Rather than flounder through the civil courts on your own or with your friendly family high street solicitor, trying to claw back what you have lost which maybe difficult or impossible to prove, if you lose out to a competitor who has used bribery to win a contract you can bring a private criminal prosecution under the Act.

You will need cogent evidence of course, or know in which direction to point a trained investigator.

It would also require the approval of the DPP or the SFO Director, but if it is being handled by such responsible lawyers, known to and trusted by both Departments, this should be no obstacle.

If the prosecution is successful, then the court can order confiscation of the defendants’ proceeds of the bribe, which will be the full revenue value of that contract, and further it can order that the part of confiscation sum that represents your loss can be paid direct to you, as well as ordering that defendant to pay your costs of that prosecution.

Nobody has thought of this before. My own guess is that the CPS and/or DPP will be very happy for them to take on this work, thus relieving their own hard pressed resources and funds from a task they simply are not geared up to perform.

Certainly those to whom I have spoken in the last year who feel the Act is toothless might have good cause to think again. With a facility to investigate and prosecute bribery at all levels, and not just the headline grabbers, the Bribery Act might just be about to start snapping at the heels of the complacent after all.

I never thought I’d find myself quoting Ken Clarke with any form of approbation, but he did begin the preface to the Section 9 Guidance with these words. “Bribery Blights Lives.” Well it does, and here’s a way to stop it

Watch this space

One thought on “Time to Stand Up for the Little Guys (& Girls)

  1. Just in case anybody actually tries to do this, note that the DPP consent requirement may well be fatal. The CPS guidance on private prosecutions where DPP consent reads as follows:

    “DPP Consent Cases

    For some offences, the private prosecutor needs the consent of the DPP to the prosecution. If the proposed prosecution passes the Full Code Test, the CPS will then take over the prosecution. If the proposed prosecution fails the Test, consent to prosecute will not be given.”

    Or, in other words, you never get to do the prosecution yourself, although you may well have served a useful purpose in prodding the CPS into action.

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