This is My Decision

That says it all Jaime. REALLY. Thank you

A view from the North

So the CBA have announced their ballot. If you are eligible to vote I urge you to do so as soon as possible. The vote is availablehere. It is absolutely vital that you vote and have your say, either way.

There has been some consternation about the fact that the ballot has a closing date two weeks away. I can understand some frustration with this. Of course if lots and lots of people vote very quickly the period may be foreshortened.

I pause for a moment to observe you should be careful what you wish for. Many of us wanted a ballot. We have got a ballot. Impatience expressed with intemperance may not be the best way to persuade. Herding cats is a difficult task to manage. The CLSA and the LCCSA know that only too well. They have been corralling felines for months and months. I know…

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Eighteenth letter to the Lord Chancellor

And the grateful bosses will be queuing up to offer directorships when he gets the boot.

theintrigant

Eighteenth letter to the Lord Chancellor,

Lord Chancellor, Secretary of State for Justice,

Mr Chris Grayling MP,

30th July 2014.

Dear Lord Chancellor,

There has been a revolution in the workplace up and down this country. The behaviour of bosses has dramatically improved and this has been achieved by a simple adjustment to policy made by you in July 2013. Figures just released compare employment tribunal claims made between January and March 2014 with the same period in 2013.

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Why I voted Yes in the Ballot and No to the deal.

The CBA leadership of recent vintage, from Max Hill QC, through Michael Turner QC and now Nigel Lithman QC have done a terrific job in the last few years. They have woken the sleeping giant of the Criminal Bar and given it a voice in the Criminal Justice system.   They have of course proposed things such as Grad Fee + that I, as someone who is privileged enough to have 90% of his practice in VHCCs, fundamentally disagree with.  But their leadership has been outstanding and proved to us all that we are more than the sum of our parts.

I voted Yes to the question on the ballot.

Why?

An 8.75% cuts to Solicitors fees came in on 20th March. Another 8.75% of cuts will come in next year, despite reports to the contrary, whether deliberately misleading or not.   If the majority of the CBA membership vote No to the measure and yes to the deal it does not take a genius to see that the one area that Solicitors must look to offset the catastrophic cuts that will have wiped out their very slim profit margins is AGFS and keeping Crown Court briefs in-house. You cannot blame them for that and as small and medium business owners they would be mad not to.  As others have said if we vote No on this ballot measure it is a rerun of the Carter reforms, which we know resulted in a loss of work for the Bar to solicitor-advocates and HCAs such that their share of AGFS is now some 30%.  Voting No to the ballot question (and yes to the deal) will be the death of the junior bar. 

It is really that straightforward.

Why else?

We have seen unprecedented unity across the CJS to oppose this Government’s barmy approach. We have had success with all the things we as a Criminal Bar have initiated: days of action getting publicity, VHCCs  returned (and not taken up by others) and the No Returns policy making Judiciary and MoJ sit up and take notice. Solicitors have supported us with all these.  The success of this approach is that having been put on the naughty step by the MoJ for much of the previous year our leaders are now regular guests at Petty France. The MoJ approached us to negotiate last week – not the other way round. The time limited deal offered last week is not, following another meeting Our Leaders were invited to on 3rd April, apparently quite so time limited.  I am sure that I do not need to spell out the implications of this to you. 

We can and must do more for all CJS professionals.

Why else?

A No vote in the ballot is to reject the actions of counsel who took the brave decision to return their VHCCs briefs last year when the 30% cuts were confirmed not knowing whether the rest of the Bar would support them. A No vote rejects the part those who returned VHCCs (and those who have had cases contracted since December who have declined to sign) in getting the MoJ to approach the CBA to negotiate. 

Forgive me for personalising this but I was one who returned a VHCC and I did so as the sole breadwinner in my household and with two sons under four.  Even though VHCCs are 90% of my practice, enough was enough.  I have not worked for 4 months but it remains the right decision.  There is no commitment by the MoJ to negotiate on VHCCs other than ‘within the existing financial envelope’ ie they have no intention of reversing the cuts with this deal.  VHCCs are not, as some have tried to argue, a separate issue. It may have been a quirk of timing that the return of VHCC briefs has spearheaded the CBA campaign to oppose the MoJ’s cuts but spearheaded it has. Operation Cotton, the VHCC I returned, with 5 defendants without counsel and 101,000 pages of served evidence, is due to begin on 28th April.

I do not think it is an accident there have been two meetings with the MoJ in the last eight days.

Why else?

The return of VHCCs and the days of action have had an impact. The No Returns policy was making huge waves and if re-initiated will keep doing so. Combined with the radical and brave decision by the LCCSA and CLSA to have its members decline to apply for Legal Aid in the Crown Court from 7th April I believe that we will be successful. It may be painful – it has already has been so for VHCC practitioners and the Junior Bar with No Returns. But we have a once in a life time opportunity here to safeguard the system that we have spent our professional lives supporting, Criminal Justice. We must continue to fight the cuts and unite more closely with our Solicitor colleagues.

Solicitors and Barristers cannot be simply replaced by Green Goddesses.

And finally….

A Yes vote is a vote for 100% of the Criminal Bar and 100% of the Criminal Justice System.

 

Tim Thomas, 1 Pump Court Chambers, tt@1pumpcourt.co.uk, @TimothyThomas79

Why I Support the CBA but Oppose the Deal

A view from the North

I am a Manchester United fan. This season that makes me something of an expert when it comes to witnessing capitulation. So I know what I am saying when I say that the deal announced last week between the Bar and the MoJ was not a capitulation. It was an error, but to suggest it was a capitulation would be to suggest that it was the product of a lack of desire to fight. The CBA have demonstrated ample appetite for the fight.

Nonetheless I believe the deal is not a good one for the Bar. And I believe it should be undone by the Bar and the CBA asked to continue their splendid fight. There are a number of reasons why I suggest you should urge the CBA to ditch the deal but before I turn to those if I may suggest some things not to base your decisions…

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A Change of Heart on the CPR

“A QUESTION OF INTERPRETATION”

I don’t usually write about my own cases, because I have never been a big believer in blowing my own trumpet. In addition to that, this blog is supposed to be about the Bribery Act, although with the caveat in the “About” section (which nobody reads) that I may wander off at a tangent from time to time. Well this is that time.

We rightly take pride in our judicial system which, despite occasional flaws, usually comes up trumps when compared with those in pretty much any other jurisdiction.

Part of that necessarily has to include the manner in which we dispense justice to those who are visitors to this country, and are accused of crime in our courts.

In exactly the same way as I would expect, or at least hope, to be able to understand and participate in proceedings abroad if I were unlucky enough to be arrested in foreign climes, anyone in the dock of an English Court is entitled to expect the same. And not just in court either. The legal process for a non-English speaker is very likely to begin long before the swearing in of a jury.

Thus it was, when the client in question drove his lorry off the Channel Ferry into the welcoming arms of UKBA, who expressed a very healthy interest in the “anomaly” within his load, revealed by their detection facilities (see below), linguistic assistance was required.

 

 

 

 

True, he spoke a little English. That is the way of an international lorry driver. They need to eat and buy necessities, so they have a smattering of the language as often as not. Same goes for UK drivers travelling abroad.

However, merely because they won’t starve in a Burger King, does not mean they are bilingual.

In fairness to UKBA, I have yet to come across a case where an arrested person who asks for one, is not afforded the services of an interpreter, but therein lies the rub. What sort of an interpreter are they likely to get.

This is not yet another attempt to hurl vitriolic abuse at Applied Language Solutions. (although I did find the word “Solutions” a little difficult to type having set my keyboard to non-ironic mode.)

What follows began some time ago, in the days before the MoJ put interpreting up for sale to Delboy with a Dictionary.

 

 

 

 

 

 

The warning signs should have been there for Interviewing officers as well as the Duty Solicitor. Answer after answer came back, “He says, He did, He went. Etc etc. This was not a simultaneous verbatim translation in the first person, it was quite clearly a third person précis of what was actually being said.

Two problems arise here. It’s not just the defendant’s answers that are being improperly interpreted. Who has got the faintest idea of how the questions are being interpreted to him?

Thus it was that the interviewing officer, quite reasonably thought that the defendant was being evasive and changing his story, and proceeded to say so under cross-examination in the witness box.

The fault lay in the fact that the defendant had told the officer he had done something on a particular day, but the interpreter on each of half a dozen different occasions, omitted to translate which day it was. The officer genuinely believed it was a different day. When you are dealing with a tachograph case, this is of course, vital.

Problem was that although it was clear that the interpreter had not been doing a perfect job, it being a minority language that not many were familiar with, no-one could have realised just how badly she was getting it wrong in both directions.

Fortunately it became so obvious in the course of that officer’s evidence that something was wrong, the judge was asked for an adjournment overnight so that the court interpreter could help check what was actually on the tape.

Prosecuting counsel wisely decided to arrange for the interview interpreter to attend court the next morning.

On the morrow, armed with a large number of errors deciphered the night before, I invited the prosecution to have their “expert” listen to the tape again, and see if she agreed her own translation.

Within five minutes there was a knock on my conference room door from prosecuting counsel. “I’m very sorry, we agree that there are significant errors. We have to ask for the jury to be discharged so this can all be done again.”

Fortunately for him, the defendant was on bail. He could be allowed to return to his home in Eastern Europe, while this was done.

Eventually, we were able to agree a revised version which went before the jury, in which it was clear that on all the matters criticised by the interviewing officer, the defendant had in fact been telling the truth, but the interpreter had failed to interpret the answers.

We were lucky that the court appointed interpreter, (NRPSI accredited) was not only able to do the job properly, but also happy to put in a lot of extra hours at very short notice, in order to provide the necessary guidance, without which we would never have been any the wiser.

All this took place before ALS arrived on the scene. However the retrial could not be listed until after the new arrangements were in place. By a minor miracle, and I know not how because she has not accepted the Capita shilling, the same court interpreter was instructed to interpret for the trial, at which the defendant was acquitted by the jury, but not before yet another misinterpretation, this time of a text message, had been corrected by her sharp eye, with the immediate agreement of the prosecution “expert.” (A different one.)

Not only should this never happen, as a matter of common sense, it should not happen as a matter of law either.

 

 

 

 

I do not know why this has happened, though I suspect yet again it is down to money, but there is a very simple answer. It lies in the judgement of Gorman J. In the case of R –v-Attard, 43 Cr.App.R. p 90. (Nerd Reference, Archbold 8-193) Although this was a trial at first instance at the Central Criminal Court, it is of persuasive authority on Crown Court Judges, and should be followed.

It says simply this.”When a defendant is interviewed by police through an interpreter, only the interpreter can give evidence of the questions which he put to the defendant on behalf of the police, and of the answers given to him by the defendant.” (my italics).

What that always used to mean is that the ROTI’s (interview transcripts) were produced as exhibits by the interpreter who conducted the interviews, having checked them for accuracy first. That of course costs money.

What happens now is that tape is sent to an audio typist who prepares a transcript of what he or she can hear in English. That is then produced as an exhibit by the interviewing officer, who can only check the English, NOT the interpretation.

So there are two alternatives. Either the defence solicitors have to apply to the Legal Services Commission, in every case for authority to submit the transcript to an interpreter for checking, (i.e. so they can get paid), or the job should be done properly, and the transcript, and  interpretation should be checked by the original interpreter, who has a second chance, without pressure, to listen to what was said and ensure accuracy.

I am not going to get into a spat about the competence or lack of it, of those who are contracted to provide interpretation services at police stations or UKBA posts.

If the case of Attard is good law, and to my knowledge it has never been challenged, then every interpreted interview should be subject to a review by the original interpreter, and exhibited in that interpreter’s witness statement, before it can be placed before a court.

Half-arsed suggestions that all this can be circumvented by a Hearsay Application, will not do. Yes, it is hearsay, but you can choose any number of reasons from Section 114 (2) of the Criminal Justice Act 2003, as to why it should not be admitted.

So, next time you as a solicitor or counsel are sent a brief for a client with an interpreted interview, produced by the interviewing officer, do not forget to include on the Case Management form that you object to the admissibility of the defendant’s interview in the absence of any statement from the interpreter producing it. Simples!

And then duck!

Watch this space.

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

UP TO THEIR NECKS IN CRUDD

Yes I’ve been away for a while, working as it happens, but woke up this morning to news of something that merits the attention of our esteemed Director of Public Prosecutions.

If he can manage to tear himself away from the exhausting task of “improving the quality” of the prosecution product that he promotes, (i.e. slashing staff and destroying in-house morale),  he might just like to open a copy of the Bribery Act (Section 2 is the bit you need Keir) and have it handy while he’s poring over the Peter Cruddas story in today’s papers.
This is NOT one for the SFO, but fairly and squarely, one for him.
He needs to look at some law, and so do we:
Section 2:

Offences relating to being bribed
(1) A person (“R”) is guilty of an offence if any of the following cases applies.
(2) Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).
And then this:
(6) In cases 3 to 6 it does not matter—
(a) whether R requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party,
(b) whether the advantage is (or is to be) for the benefit of R or another person.

And he also needs to look at what Cruddas said, – as do we.
http://www.bbc.co.uk/news/uk-politics-17503116

(this link may need cntrl-click)

“What you would get, we’d get you at the Cameron and Osborne dinners.”

“If you’re unhappy about something, we’ll listen to you and put it into the policy committee at Number 10”
“Some of our bigger donors have been for dinner in Number 10 Downing Street in the PM’s private apartments….. “

“Things will open up for you… but you need to go in with a bit of, you know, it’s no good scratching around with ‘it’s ten grand now and five grand then’, …minimum hundred grand, but the nearer you can get to two hundred grand, and hold back for the events, … it’ll be awesome for your business”

So what does Section 2 have to say about the above?
Well he’s not “agreeing to receive” money, in the sense of accepting a financial advantage that has been offered, because from what we can see on the video, nothing has been proactively offered.
It follows that nothing has been “accepted” either.
The issue hinges on whether or not anything he says amounts to “asking” for a financial advantage.
He doesn’t need to receive anything, the offence being complete merely by the making of the request.
What he did not say was, “Please give the party some money.” It is evident however, that this was a meeting between the party co-treasurer and two prospective donors.

We do not know at whose instigation this meeting took place, or what discussions preceded it.
From Cruddas’ point of view, he was faced with people who were considering donating, and wanted to know what, if any, advantages a donation might bring.

Again we don’t see the entire conversation, but we DO see Cruddas effectively setting out a “tariff” of benefits. The more you give, the more you get.

Does Section 2 require a specific request for a financial advantage, in order for the person making that request, to commit an offence?

Your humble blogger would submit that the answer to that question must be “No.”

To conclude otherwise would mean that any broad hint, or “nudge and a wink” would fall outside the act, both in terms of asking for a bribe (Sec2) or offering one (Sec1)

In other words, telling someone that if they happened to be kind enough to place a brown envelope stuffed with cash in your briefcase, after which they might just happen to get an invite to dip their snouts in the Number 10 Pig Tough, would not be an offence, whereas coming straight out with “Gissa Bung,” would be.

If the DPP ducks the issue by saying that there was no direct request for payment, then the whole act is dead in the water. (pun intended.)

As one of Her Majesty’s Counsel, learned in the law, Keir Starmer has to face up to the fact that here is a senior Tory Party official who has given a clear intimation to a potential donor, that in return for, and on condition of, the payment of a large sum of cash, that donor would be given direct access to the Prime Minister, the Chancellor of the Exchequer, and influence in the Number 10 policy committee, for an “awesome” business advantage, not enjoyed by others.

This would amount to the effecting of an improper performance of the function of the person compiling the guest list, to invite someone to a dinner specifically in return for cash, to secure a business advantage not on the basis of need or merit, but “wedge.”

That improper performance would be effected in breach of the relevant expectation of you or me, (See sections 4 & 5) that political parties would not dish out favours for cash. (I did type that with a straight face, honest.)

Section 2 Subs 6 (b) makes it clear that the cash does not have to be for Cruddas’ advantage.

Or as we lawyers say, “you’re nicked sonny.”

That’s all for now, but as I always say, “Watch this Space.”

THE BRIBERY ACT. MUNIR PATEL AND WHAT YOU NEED TO KNOW ABOUT HIS DAY IN COURT.

THE BRIBERY ACT. MUNIR PATEL AND WHAT YOU NEED TO KNOW ABOUT HIS DAY IN COURT.

First of all, contrary to what some “experts” have been blaring today, he was NOT sentenced to six years for Bribery. (which may come as some comfort to a few suits out there!)

On Count 1, an offence under the Bribery Act, he was sentenced to three years imprisonment. He had pleaded guilty, and was told that had he fought the case, the sentence would have been between four and five years. The maximum is ten years.

He also pleaded guilty to Count 2 a common law offence of Misconduct in a Public Office. He was sentenced to six years to be served concurrently with Count 1. The maximum is life imprisonment.

As the Judge said

“… this indictment represents misconduct which lasted for well over a year and involved at least 53 cases in which you manipulated the process in order to save offenders from the consequences of their offending.”

The full transcript of sentencing remarks is here:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/munir-patel-sentencing-remarks.pdf

BUT…. and it’s a very big but, the sentence reflecting conduct lasting well over a year, can only have applied to Count 2, because Count 1 could only relate to bribes accepted after July 1^st. In other words a comparatively small proportion of the time involved.

They ARE two separate offences. Accepting, or even asking for a bribe, is an offence in itself, even if he then did nothing.

What he did was to ask for and accept bribes, AND THEN go on to falsify the DVLA records by not entering details of motoring convictions which was his job. It could even be argued that he was lucky to have escaped a consecutive sentence.

What else? Well it is said that he was asking £500 a time to do this. 53 cases at £500 a time would mean about £26,000 in his back pocket. When police examined his bank accounts, (yes he paid the money into his bank….) they found credits of £96,000 unaccounted for. He earned about £25k per year.

So what does this all tell us?

On his own admission, to the court and on the secret video filmed by that bastion of rectitude, The Sun, he had been well at it for over a year.

http://www.bbc.co.uk/news/uk-england-london-15310150

The judge had this to say about the effect of his actions on the Judicial system:

“By doing what you did, you created a danger not only to the integrity of the process but also to public confidence in it. A justice system in which officials are prepared to take bribes in order to allow offenders to escape the proper consequences of their offending is inherently corrupt and is one which deserves no public respect and  which will attract none.”

This was far from a simple breach of trust, and cannot be judged in simple monetary terms against such cases.

SO…. if three years on a plea for a Bribery Act offence under Section 2 by a public servant is a guideline, then how much further up the scale will the suits have to crane their necks?

Only time will tell, but I leave you with two further thoughts.

IN the joint prosecution guidelines produced earlier this year by the SFO and the CPS (remember them?) they stated:

“The Act takes a robust approach to tackling commercial bribery, which is one of its principal objectives. The offences are not, however, limited to commercial bribery. There may be many examples outside the commercial sphere where individuals attempt to influence the application of rules, regulations and normal procedures. Examples would include attempts to influence decisions by local authorities, regulatory bodies or elected representatives on matters such as planning consent, school admission procedures or driving test”

So it isn’t just the suits who need to keep looking over their shoulders. The CPS are alive to lower level bribery too.

And finally, when can we expect to see 53 arrests and prosecutions for those who bribed Munir Patel?

THE BRIBERY ACT. RICHARD ALDERMAN GOES WEST.

After his March foray to the Russian Steppes, leading the SFO Light Cavalry into the Corruption Valley of Death that is the Russian Business Sector, The Man In The White Hat, Richard Alderman, has yet again saddled up and headed West this time for the Badlands of er… Washington DC.

The March trip was all about announcing “The British are Coming” to a Russian business community that were surprisingly receptive if the chatter on the Internet is to be believed. Russia and the CIS seem to be showing a far greater interest in the multi-jurisdictional reach of the UKBA than countries closer to home. I get a lot of correspondence on Social Media from that part of the world asking some very searching questions, which so far I have been answering for free!

Some might say that they have to be more interested, but at least the message is getting home to them.

Not so, much closer to home perhaps. One question I picked up, after the announcement of the Munir Patel prosecution, from a UK business journalist working in India was:

“The SFO and UK government has spent significant resources telling firms in Asia that they’ll be pursuing firms for bribes paid or received. This case (Patel) should not cause sleepless nights for execs at too many non-UK firms – the prosecution is neither commercial, nor extra-territorial. How do you convince firms to prioritise setting aside resources for policies, procedures and their implementation?”

A string of comments followed, effectively pointing out how Section 7 in particular could be used to prosecute foreign corporates with a business presence in UK who had used bribery to secure overseas contracts in competition with UK companies.

That elicited this response from the original source:

“The public interest test will be the one to watch here. Why would the prosecution of a firm across the globe for an act committed in another jurisdiction be in the interest of the UK tax payer?”

My heart sank.

ANSWER: Because the risk of prosecution in the UK courts, (involving confiscation under POCA, class actions by shareholders of losing companies etc etc) would be very likely to deter foreign corporates from using Bribery to secure business in competition with UK companies overseas. (Yes there IS an echo in here.)

———-

So what did our intrepid man with the lasso have to say to the huddled masses once he had cleared Ellis Island? (Am I flogging a dead horse here?)

Well first up was the Trace International Forum at the St Regis Hotel ($400 – $900 per night).

Having (rightly) complimented Trace International for its work in fighting Corruption, he then went on to deliver an update on the SFO’s current position.

80 Frontline staff dealing with a resource of $7.5m, although that “resource” is flexible and he can draft in staff from other areas if needed.

Current anti-corruption work (50 cases) dominated by pre-Bribery Act cases. (We will all please remember that it is NOT retrospective, and can’t be used to prosecute acts of Bribery committed before 1^st July this year.)

SFO have to work harder than DoJ on investigations because all have to be fully trial prepared rather than just aiming for Deferred Prosecution Agreements. (But see below for exciting news.)

Good news is that self reporting is on the up, thereby involving less work, (and if MacMillan Publishing is anything to go by, the company pays for the investigation as well as the resulting civil penalty of which the SFO get up to 35%.)

He took the time to point out that our old laws, (still current for pre July 1^st offences) have a highly restrictive test for prosecuting corporations. The company is only liable if the most senior members (the directing mind) were involved in criminal activity.

He didn’t go on to deal with jurisdictional issues partly dealt with by the Anti Terrorism Crime and Security Act 2001 Sec 109, so nor will I.

Nowadays, rather than having to prove the Directing Mind test, Section 7 only requires a failure to prevent and/or the turning of a blind eye by an individual.(and so does Section 14 where individual directors are in the frame)

There is a rueful remark about the ability of NGO’s or “interested parties” to play at being awkward squad, such as where impertinent  attempts were made to try to force the continuation of the Al Yamamah case, a problem not encountered by the DoJ’s posse in the USA. (and yes, the word “proportionate” makes yet another appearance in this context, for which Teresa May will be most grateful.)

———-

But there was some positive stuff too.

In all three talks, on the 4^th (TRACE) and the 5^th, (Covington & Burling LLP) & Risk Advisory Dinner (Hay Adams Hotel $465 to $2,695!) he was keen to talk about the Demand side as well as the Supply side approach, which I take to mean, Going After Those Asking For Bribes. (Section 2) – Blame Uncle Sam for the jargon not me, – and this is an SFO joke not a reference to anyone American. (Sorry Tom I’ve done it again, – but there will be a prize for the first person who posts an explanation in the comment section.)

Essentially the SFO are promoting the idea that corporates who experience problems, specifically in terms of requests for Facilitation Payments overseas, should share experiences and anecdotes so as to assist the SFO in a concerted approach to the foreign government concerned.

———-

On a rather different tack, he also homed in on Section 14, which has not had a great deal of air time since the Act came into force.

14

Offences under sections 1, 2 and 6 by bodies corporate etc.

(1)This section applies if an offence under section 1, 2 or 6 is committed by a body corporate or a Scottish partnership.

(2)

If the offence is proved to have been committed with the consent or connivance of—

(a)a senior officer of the body corporate or Scottish partnership, or

(b)a person purporting to act in such a capacity,

the senior officer or person (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly.

(3)But subsection (2) does not apply, in the case of an offence which is committed under section 1, 2 or 6 by virtue of section 12(2) to (4), to a senior officer or person purporting to act in such a capacity unless the senior officer or person has a close connection with the United Kingdom (within the meaning given by section 12(4)).

(4)In this section—

• “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate,
• “senior officer” means—
• (a) in relation to a body corporate, a director, manager, secretary or other similar officer of the body corporate,

What he had to say was this:

“Let me turn, to the question of personal liability. I know that this is exercising the minds of a number of people. The Bribery Act creates an offence of consenting to or conniving at bribery in respect of senior officers. It is an offence I am very interested in. I want to see suitable senior executives brought to a criminal trial where they know about bribery and have permitted it to continue. 

Some have asked me what this means for Directors more generally and indeed non-executive Directors. What does it mean, for  example, for US citizens based in the UK who are Directors or non-executive Directors of corporations based in some very difficult countries? Will the Act apply to them? What about UK based senior executives of US corporations? What is their exposure? The Act says that they are within the scope of the offence if they have a close connection with the UK (for example, if they are UK citizens or ordinarily resident in the UK)

These individuals need to consider their own personal liability in respect of what their corporations do. Ultimately, I believe that this is absolutely right. They are responsible individually and with their fellow Directors for the ethical conduct of the corporation. If they are unhappy then they need to consider their position. If they cannot change the corporation’s approach then they may have to resign. If they continue then they run the serious risk of committing a criminal offence under the Bribery Act.”

This will make uncomfortable reading for many and could be construed as growing confidence on the part of the SFO to tackle the bigger fish overseas.

————–

Mergers & Acquisitions, linked as they are to the Private Equity lobby came in for some interesting words of comfort though.

What happens if your Due Diligence unearths a “bribery nasty” lurking in the target company’s books?

“I believe that it is very strongly in the public interest if good ethical corporations take over those with corruption problems and  sort out those issues. We all benefit from this. What I want to hear about from the corporation is the work that has taken place to identify the issue and what they propose to do about it if the deal goes ahead. I want to be in a position to give assurance about the approach of the SFO if the corporation does carry out the programme of work that it tells me about. I have found that there has been a lot of recognition of the constructive nature of these discussions”

————-

Not such cheery news on the FACILITATION PAYMENTS front. Legal up to a point under FCPA, but certainly not in the UK.

 “Let me turn now to some examples of how the SFO is working with corporations. A lot of this at present concerns facilitation payments. This is something that has been developing in interesting ways and US corporations need to be aware of this. You cannot take comfort from the FCPA exemption and take the view that you do not have a problem if in fact you come under the UK Bribery Act. These payments are illegal under our law and have always been illegal.”

This is the interesting jurisdictional conundrum.

FP’s have always been illegal in UK law. They are Bribes pure and simple.

Under FCPA, payments to govt officials to speed up that official’s duties, “grease payments” are not illegal.

The crunch will come if the SFO seek to prosecute a US Corporate with a UK business presence, if it has paid FP’s to give it a business advantage over a UK company in the context of a foreign contractual negotiation.

It will be no answer in the UK courts for the USA corporate to say, “what I was doing was entirely legal in my own country, and I was not doing it in your country.”

————-

Thankfully he had nothing to say about Corporate Hospitality, (I should think not looking at the cost of rooms in the hotels he stayed in) –  so nor will I.

————-

On prosecution policy, we had this definitive statement, particularly in relation to Section 7.

“We are, therefore, looking for cases in which to apply the new law. I have said publicly that a high priority for us will be to find a foreign corporation with a UK business presence that has got involved in corruption in another country and has undermined a good ethical UK corporation. Those corporations have been within the SFO’s reach since July 1^st as a result of the new Bribery Act. An English jury will take the view that there is a very clear UK public interest in bringing such corporations to a criminal court. It is a high priority for us.”

“The British are Coming!”

————

IN OTHER NEWS:

On the 6^th October, the Solicitor General Edward Garnier QC suddenly popped up with this. The Government are considering introducing Deferred prosecution Agreements, which the SFO have been crying out for ever since Innospec, BAe Tanzania, and a host of other attempts at plea bargains that went belly up before some very unimpressed judges.

Here is an extract from what he had to say:

¨ The introduction of deferred prosecution agreements (DPAs), similar to those in the US, would provide a more effective approach to dealing with corporate crime in some cases. The attorney general and I are currently engaging with the Ministry of Justice, the Home Office and others in order thoroughly to explore the question.

¨ DPAs are an established part of the US response to corporate crime, encouraging companies to self-report to the Department of Justice. The DoJ typically agrees with a company to suspend or ‘defer’ any prosecution in return for payment of a substantial financial penalty, payment of compensation to victims and the imposition of a regime of corporate monitoring (at the company’s expense) for a period of two or three years.

¨ These are the usual terms of the agreement, but there may be others allowing the prosecutor to keep its flexibility about what is required. If the company complies, the prosecution is eventually dropped at the end of the period. The Treasury benefits, the company can start again and the deterrent effect is significant.

———————

That’s it for now, I shall be delivering a seminar with Dominic Connolly in Chambers at 5 St Andrews Hill on Thursday 20^th. Me on the Act and Dom on POCA and FSA Civil Recovery.

I will look soon in more detail at GPT/EADS, The Final Settlement of BAe Tanzania and the Select Committee hearings for which certain people needed very thick cushions, and I will finally  get round to some detailed reviewing of Eoin O’Shea’s excellent book on the Act. (Sorry Eoin, I’ve actually been busy in court for once.)