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 1st 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 1st 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 4th (TRACE) and the 5th, (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 1st 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 6th 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 20th. 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.)

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The Bribery Act: “Government Keen To Accept Bribes”

****STOP PRESS. OFFICIALLY ENDORSED BY BLACKADDER HIMSELF****

(See Comment below from theBriberyact.com)

There was I bemoaning the fact in the last bungblog that the Bribery Act was the preserve only of the rich and famous, and along comes news of a prosecution by the CPS involving an allegation of a bribe of £500
We will not go into any of the details, which might of themselves explain a little more behind this decision, but is it really possible that we might end up following the Indian lead on Bribery, (popular that is rather than political) and see this as the acorn of the cultural change the OECD have been advocating for years?

Small bribery can be just as insidious as Big Bribery, but it is much less likely to be prosecuted for one very good and compelling reason, which I will turn to in a minute.

The first important point to notice is that this prosecution was brought by the CPS and not the SFO.

Both are able to prosecute offences under the act, but neither can institute proceedings without the approval of their respective heads, the DPP Keir Starmer QC, or the Director of the SFO, Richard Alderman.

At the time the section 9 guidance on “Adequate Procedures for Preventing Bribery” was issued, those two bodies issued a joint document setting out the guidance that they themselves would follow in making the decision on whether or not to prosecute.

http://www.cps.gov.uk/legal/a_to_c/bribery_act_2010/

When you read it, you begin to realise that in fact we do have a two tier approach, in much the same way as we do with fraud. Big fraud to SFO, small fraud to CPS, or at least that’s how it looks on paper, together with a bifurcation (!) between domestic Bribery and International Bribery.

Let’s look at a short passage from the introduction:

“Scope of the Act

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 tests.”

And then this:

Bribery is a serious offence. There is an inherent public interest in bribery being prosecuted in order to give practical effect to Parliament’s criminalisation of such behaviour.

It then launches into the jargon of “The Full Code Test” and the “Public Interest Test.”

So should we really be at all surprised that a CPS prosecution has been brought in relation to what is an apparently minor offence, (I mean in terms of the amount involved)?

Highly respected commentators of a Transatlantic persuasion have already been turning their noses up at such an apparently lacklustre opening act in the brand new theatre that is the Bribery Act.

BUT as the erudite and interesting thebriberyact.com has pointed out:

(this) misses a fundamental but important difference between the US FCPA (Foreign Corrupt Practices Act) and the Bribery Act.

The UK Bribery Act covers domestic bribery AND foreign bribery.  The US FCPA only covers foreign bribery.

Broadly speaking foreign bribery cases are likely to be more complicated from an evidential perspective.  They will, as a result, take longer to investigate and prove. (and cost a lot more, – that was me.)

This is the raison d’etre for the Serious Fraud Office in the UK.

http://thebriberyact.com/2011/09/01/a-golden-rule-in-litigation-never-underestimate-your-opponent-or-why-it-is-a-mistake-to-pooh-pooh/

(Although AA Milne was never an authority on the Act. That  should be poo-poo, Richard and Barry)
****CONTROVERSY NOW RAGES – SEE COMMENT BELOW FROM thebriberyact.com****

———–

So if the CPS will prosecute someone for bribing a member of a council planning committee, a headteacher for selecting a dunce who is the child of rich parents, or a driving instructor for passing Mr. Toad, (very English joke Tom, see Wind in the Willows), then maybe the act will achieve that which the bare words of the statute intend.

After all, we should not forget for a minute the Provisions of Schedule 2.

You have  forgotten the provisions of Schedule 2 haven’t you?

Schedule 2 contains a list of all the old Acts of parliament which are repealed on the passing of the Bribery Act, including:

Public Bodies Corrupt Practices Act 1889

Prevention of Corruption Act 1906

Prevention of Corruption Act 1916

Anti Terrorism Crime and Security Act Sec 108 – 110

(Section 109 dealt with Bribery and Corruption committed outside UK)

To save you looking them up, they effectively comprise all the previous anti corruption legislation, although we still retain Common Law offences such as Misconduct in a Public Office, which could apply to public officials accepting bribes, but not private individuals.

Which means in the absence of The Bribery Act, such small bribes are not an offence.

———–

Which brings me wobbling back to sort of where I started at the beginning of last week’s blog.

Small bribes involving excessive hospitality, facilitation payments, (Grease is the word, if you are in the USA), the fashion journalists tale, (last week) and what about the rampant corruption in the hotel and leisure industry? Tips for good service are fine, but £50 to turf someone off a better restaurant table, or £100 to grab someone else’s superior hotel room? (Concierges cringing the world over hopefully.) If they are given cash to persuade them to effect an improper performance of their function, i.e. bumping someone from a room that they had booked and paid for, that’s a bribe.

Yes of course there is the old argument that such people are traditionally poorly paid because they are expected to make extra dosh in that way. Well that is where the concept of culture change comes in. If India can think the unthinkable, with the inspiration of Anna Hazare, then so can we.

In a recent seminar given by a senior officer of the SFO, we heard this, particularly in relation to Facilitation Payments:

“The SFO look also at the effect of small payments. They can have a corrosive effect, and are often part of schemes orchestrated at higher level by people into whose pocket a proportion of payments go.

Once you have someone in your pocket by means of small payments, just like blackmail, there is nowhere for it to stop. It perpetuates a culture of corruption within an organisation.

In some parts of world, it is not possible to avoid them, so we consider the public interest in prosecuting

  • We consider amount of payment concerned
  • Was it systemic, one off or one of many?
  • What steps have company taken to reduce payment of this sum?
  • Were there any special sector considerations.
  • No prosecution if payment at the end of a gun or risk to life and limb.”

So the SFO, and the vast majority of comment and publicity about the Act has really been focused on International Corruption.

They will not prosecute the “Low hanging fruit.” But why should not the police and the CPS do exactly that, because if they don’t prosecute the bent planning officer or the driving examiner, who will?

———-

I said earlier that I would get to the reason in a minute why it is that I think there are likely to be very few prosecutions for Bribery by the SFO, initially. Well unless you are a very fast reader it has probably taken you a little longer than that. Sorry, maybe I got carried away.

BUT HERE IT IS.

The clue lies in two factors. Firstly the abysmal budget allocated to them for investigating and prosecuting Bribery Act offences. Second, the Proceeds of Crime Act 2002.

My own personal view, although you could call it an educated guess, is simply this.

A successful prosecution of a large corporation for Bribery, or a successful Civil Recovery action in the event of self-reporting (remember the pink fluffy handcuffs?) will result in potentially a huge amount of money confiscated from the offending company.

A proportion of those funds will be directed towards compensating those who have suffered loss as a result of the offender’s actions, but some of the money will be ploughed back into resources needed for further investigations.

To what degree I cannot say, (as I said I am guessing) but does there not exist the very real possibility that at least in the early stages, prosecution policy of Bribery Act offences will be influenced if not governed by the Cost-Benefit analysis?

If you prosecute a company for sending someone on an over-luxurious glee club trip to Tierra del Fuego, the investigative costs of an international investigation could be not inconsiderable. The proceeds of such a crime might be pathetically small. Am I barking up the right tree here? I think so.

On the other hand, if there is a concentration on Big Bribery at the start, then the coffers will be swelled that much sooner, and the whole process might well snowball into a situation where the Prosecuting Authorities  are sufficiently flush not to have to risk picking only the fruit at the very top of the tree.

They might even turn it into a flourishing industry.

Hence… “Government Keen To Accept Bribes!”

Got there in the end.

———-

The above is subject to the usual old tosh about all views being my own etc etc, but if anyone else wants to express a view (including Elm Street) then just hit the comment button below. But be warned, I have the power of moderation!

———–

IN OTHER NEWS:

If you are in the Construction industry and are near Bristol, I shall be spouting forth to members of the RICS Bristol on 13th September. You have to get the guff from them but I’d be delighted to meet followers there. It’s near the big RAC thingy on the M5.

IN EVEN OTHER NEWS

thebungblog now has its own Group on LinkedIn, for news, view, comments and a cup of tea, (iced if you are of the transatlantic persuasion)

Join now

UK BRIBERY ACT 2010 thebungblog SPEAKEASY

IN OTHER REALLY BIG NEWS:

If you are reading this blog, then you are bound to have heard of @charonqc http://charonqc.wordpress.com/

There’s a link to it in my blogroll as well.

ANYWAY…. every week the eponymous blogger produces a podcast of a discussion with some distinguished lawyer or other on a topic of the day.

In a surprise break with that tradition of distinguished lawyers, this coming week it will be …. me!

So watch his space.

————

AND FINALLY:

An esteemed and highly respected blogger from “overseas” who specialises on the FCPA in particular, has had the temerity to suggest that the brand of humour promulgated on this modest little blog, just might not translate into American.

Views please!

TheBungBlog

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..