Official. Government declares Bribery is NOT an Offence!


***NEWS JUST IN. VERY FIRST PROSECUTION UNDER THE BRIBERY ACT, AND IT’S A BRIBE OF JUST £500!!***

http://blog.cps.gov.uk/2011/08/court-employee-faces-first-prosecution-under-bribery-act.html

If I walk into Tescbury’s, pick up a bottle of water costing £1, and walk out without paying, I have stolen it. It is an offence under Section 1 of the Theft Act 1968. No argument.

If caught, I would be charged and taken to court. If convicted, subjected to whatever penalty, and have a criminal record against my name. (also in my case probably lose my career.)

If instead of that, I take a solicitor friend to dinner, and at the end of the meal, I offer to pay for the whole thing if he will send me a brief in a three month fraud, which I know he has, although I also know he’s planning to give it to another barrister more qualified than I, I have also committed a criminal offence under Section 1 of the Bribery Act 2010.

It doesn’t matter if he politely declines my offer. The making of an offer or promise, (let alone the actual giving) of a “financial or other advantage” to effect the improper performance of a relevant function or activity, (solicitor choosing best barrister for his lay client’s defence) is a crime. No argument.

And you can’t say this was a victimless crime. If the solicitor was sufficiently impressed by my offer to send me that brief, the barrister who missed out has lost tens of thousands of pounds.

“Bribery Blights Lives.” The opening words of Ken Clarke’s Foreword to the Section 9 Guidance. Well yes it does, but not just on a meganational scale.

Paragraph 26 says, “Bona Fide……promotional …..expenditure… is recognised as an established and important part of doing business.”

Well should it be? Or is the reality that in the Bribery Act, we have a law that is only applied where the government wants it to be?

Offences under the Act cannot be prosecuted without the authority of The DPP or the Director of the SFO. They are to apply what is politically described as a “public interest test.” As we shall see it’s far more a question of “public purse interest.”

Normally when offences call for the approval of a law officer or Director prior to prosecution, the function of that individual is to determine in cases of very serious crime, (e.g. perjury) whether or not an offence has actually been committed, rather than whether or not it is in the public interest to prosecute. You don’t want to prosecute someone for a very serious offence where none has in fact been committed.

With the Bribery Act, if you report me to the SFO for blagging a good trial brief on the strength of a bit of posh nosh, they cannot escape the fact that an offence has been committed, but they wont prosecute because it is not in the public interest. I would constitute what the SFO Director recently described as “low hanging fruit.”

IS THAT RIGHT?

Before you start thinking that the bunglbog is off on an insane rant of his own, (perish the thought) I should tell you that this blogpost was inspired by two discrete, and practising lawyer sources.

After my very first blogpost, a colleague in chambers who will remain nameless but he knows who he is, expressed disgust that he was having to pay for other people’s corporate hospitality, through the price of goods that he purchased. His rationale was that if a corporate has a budget for entertaining, then that budget must be built into the price of their goods which he has to pay out of his miserable legal aid stipend. (I’m not getting into an argument on the cost of advertising here.)

And then very recently a colleague in my former chambers, the highly esteemed “Pink Tape” (see blogroll on right) sent me a copy of an article from a “National Newspaper” which used to be a broadsheet but now cannot afford the paper, written anonymously by a well known fashion journalist. (Has to be an oxymoron in there somewhere?)

The article was headed, “I DIDN’T PAY FOR 80% OF MY WARDROBE.” She goes on to describe how she never has to worry about the bill in restaurants, has a £1200 handbag on a £30k salary, £15,000 holidays for free, and so on.

PR’s send editors freebies, and more often than not expect to see their products in the magazine.”

Now before we get too excited, we have to remember that bit about “effecting an improper performance.” Nothing wrong with puffing a product if it genuinely is the best. If on the other hand it’s just a bit of tat, (which is why I am not mentioning any of the products by name that she refers to) and she promotes it as the best, as a means of ensuring more freebies, then she has committed an offence if she asks for it, as does the PR if she is given it with that in mind.

Again, this is not a victimless crime.

The Government argument on Big Bribery is clear. If a UK company loses a big overseas defence or infrastructure contract, then that company, it’s employees and shareholders will be the victims. Workers may lose jobs, homes etc. Worse, Banks might lose their investment!

So what of small bribery? Suppose that a small cottage industry company is trying to break into the luxury handbag market with a superbly designed and crafted product. A megacorp, (we shall call it “Whortleberry” because I live in Devon- and I can spell it!) gives a very firm nod to the magazine editor who is going to review it, that her new “Whortlesack” will only be forthcoming if she reviews it favourably, and trashes the parvenu product.

That’s Bribery, and there is a victim. But that is not going to be prosecuted.

And we are not just talking about the fashion industry here either.

Travel writers, and many are perfectly honest about this, will state somewhere in an article, that they stayed in a particular hotel for free, so you can factor that into your judgement of what they write.

But if they don’t mention it, and give the place a massive plug when what it really deserved was a rechristening as “Fawlty Towers,” then again the Act is potentially in play.

I think the point that I am gently rambling towards is this:

If it all a question of degree as it appears to be:

  1. Where do you draw the line? And
  2. Who has the authority to draw that line.

If parliament has passed an act saying that Bribery is an offence, which it has, but has not said, “It’s only an offence if it’s Big Bribery,” then whence cometh the authority to say otherwise.

When I was a comparatively baby barrister, a provision was introduced into the Criminal Damage act, by Parliament, so that offences involving damage costing less than £200 could only be tried in the Magistrates Court.

There have been suggestions since that something similar should be applied to theft, by way of example.

But there is absolutely nothing in law that says that a line is to be drawn under serious bribery (and therefore to be prosecuted), at a certain level, below which it becomes presumably humorous bribery, and not prosecuted.

And before anyone starts pointing me towards what Ken Clarke has to say in the section 9 guidance, I will say this.

He had no business saying a lot of the things that he did in that guidance.

Section 9 (1) only provides that: “The SofS must publish guidance about procedures that relevant commercial organisations can pt in place to prevent persons associated with them from being bribed…”

It says not a word about the SofS including in that guidance what government policy is, or how the government thinks the act should be interpreted, but that is exactly what he did do.

This of course had absolutely nothing whatever to do with articles published in another broadsheet, which stillcan afford the paper, published in the early spring, which attempted to bring huge pressure on the government ahead of the guidance, and whose appearance was entirely coincidental in time with the delaying of the issuing of said guidance. Ahem.

So pardon me for being a fussy lawyer, but just exactly why is it that parliament has created criminal offences that can only be prosecuted on the say so of politicians, in circumstances that they themselves prescribe?

Can it have anything remotely to do with the size of the SFO’s annual budget to investigate and prosecute Bribery Act cases? (magnifying glasses supplied on request.)

I have heard, and I invite correction if wrong, that said budget is in the region of £3m pa. I have also read recently that the DWP’s budget for investigating and prosecuting benefit fraud is £58m.

I don’t pretend to know the answer to how this situation has been allowed to arise, but it jars the nerves of any lawyer to think that any criminal offence is somehow subject to the whim of the politician. *Wedge* *end* *thin* etc.

—————–

And before we go, let us not forget what is being achieved in a vast country, allegedly far more corrupt than the UK.

Anna Hazare has just finished a 12 day hunger strike to persuade the Indian Government to pass a bill introducing tougher anti-corruption laws. He appears to have succeeded. That government is to introduce a corruption ombudsman. Corruption is said to be endemic in every level of Indian life, and I for one would not argue with that. But if India can take such a radical step against apparently overwhelming odds, should our own government be seen to do nothing more than tinker at the edges?

http://www.bbc.co.uk/news/world-south-asia-14698071

And this just in from the Wall Street Journal Blog

http://blogs.wsj.com/indiarealtime/2011/08/29/what-they-said-hazare-ends-his-fast/?KEYWORDS=corruption

Maybe we should introduce a website inthe UK similar to that in India which has helped to set the ball rolling.http://ipaidabribe.com/

The SFO have suggested whistleblowing via Twitter, what better than to set up a website devoted to it?

Hasta luego, (in the hope that someone will fund a freebie trip to Spain for me…)

*STOP PRESS*  Coming very soonish, I will be presenting four seminars, two in London, and two in Bristol (RICS anyone?), so do keep your eyes peeled, AND

I shall be reviewing what I am told is an excellent book on the Act, in post from publishers as I type..

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6 thoughts on “Official. Government declares Bribery is NOT an Offence!

  1. Pingback: Postcard from The Staterooms (2): Unitit Kingdom Pairlament in Lunnon… edition.. « Charon QC

  2. Your suggestion that the “public interest test” could be more accurately described as “public purse interest” is true and adversely effects many victims of business crime, not just bribery. For example shareholders and employees in small companies which fall foul of fraud (not necessarily “Big Fraud”) in the commercial or business world, who find themselves with no support from the criminal justice system or anywhere else.

    The Fraud Act 2006 was a perfect opportunity to revolutionise the way fraud was investigated and prosecuted by Police, CPS and Judges – it happened in the middle of my time as a commercial fraud detective (Police) so I am aware of the consequences it could have had. Unfortunately this revolution has not been allowed to happen, partly because of ignorance of the law on the part of most players in the justice system (Police, CPS, JPs and Judges) and partly because of a severe lack of trained human resources. CPS relies too readily on misguided interpretations of their own guidelines about the “public interest test”. The guidelines rightly raise issues about proof of “ownership” and arguments about the “appropriateness” of civil remedies; however the guidelines are unclear and worded in a negative way, often interpreted to discourage prosecution in complex fraud cases. They fail to explain the “appropriateness” of civil remedies, thus leaving the CPS lawyer with a subjective decision to make in the context of his/her IN tray being heavy with urgent (but simpler) drugs and assault cases.

    Is it any wonder the subjective decision is often to take no action and leave victims without support, and in most cases with no means of redress?

    You use the expression “Big Bribery” – in my experience there is a parallel and equally valid case regarding “Big Fraud”. The decisions being made by the SFO and CPS which ought to be made based on the public interest are in fact made for reasons of budget constraints and are increasingly becoming political decisions instead of legal decisions.

    I cannot help thinking that we missed an opportunity in 2007 to force a change of attitude to fraud, particularly business fraud, which could have reduced the current difficulties faced by small and medium-sized enterprises.

    Dick Bollard (former DS)
    The Fraud Advisor
    http://www.thefraudadvisor.co.uk

    • Thanks for this Dick.
      For some reason WordPress slotted it in the spam folder so I did not see it straight away.
      I shall be doing a follow up this weekend on some of the reason WHY the act it being treated politically in this way, for which your comments are very helpful.

  3. Pingback: High Tide: From Passage To London To A Seven-Day Notice | Rishwat – Campaign against Corruption in India

  4. On 08/29/11 7:42 PM, Steve Sayell wrote:
    ——————–
    Not lucky enough to have a long weekend in our former colony in the far Far East. This not in public interest is something that really irks me. A large building contractor builds luxury development using a cheaper concrete because of bribes paid in the bidding process and it is not in the public interest to prosecute.
    A worker at an abattoir breaks the leg of pigs being delivered so that the owners receives less for the pig and he receives the equivalent of 75pence per broken legged animal from the abattoir owners is bribery and obviously in the public interest so he gets 6 months imprisonment.
    Both cases I dealt with and still cannot see where public interest comes into the second case but not the first
    But hei ho 40 years in law enforcement and I am still astounded by some results of the fruits of my labour

    Steve

    ——————

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