Whilst attention continues to focus on the on-going absence of a corporate prosecution for bribery by the SFO, it is worth reflecting on the circumstances of the three individuals who have been convicted of offences under the Bribery Act 2010 in England:
- Mr Patel (the court clerk)
As we have previously discussed at the Bribery Library, the first successful prosecution under the Act was far removed from the high value corporate bribery targeted by the Act. Mr Munir Patel was a court clerk at Redbridge Magistrate’s Court. He accepted the sum of £500 in exchange for not adding the details of a traffic summons to the court’s database. It turned out that Mr Patel was not only corrupt, but had fallen victim to a sting; the Sun had set up and filmed the whole incident having been tipped off by a member of the public about Mr Patel’s willingness to abuse his position. A prosecution ensued. Mr Patel asked for a number of similar previous incidents to be taken into account in sentencing.
Mr Patel was sentenced to 6 years imprisonment in November 2011 (reduced to 4 years on appeal).
- Mr Mushtaq (the driving examinee)
Second on the list is Mr Mawia Mushtaq, who became the first person to be successfully prosecuted under the Act for offering (as opposed to receiving a bribe). Having failed a driving test before an Oldham Council licensing officer necessary to secure a taxi licence, Mr Mushtaq offered the sum of £200 (later increased to £300) if the result of the test were changed to a pass. The officer was not so easily corrupted as Mr Patel. He refused the bribe and reported the matter to his manager. The incident was referred to the police.
Mr Mushtaq was sentenced to 2 months imprisonment, suspended for 12 months but subject to a curfew order, in December 2012.
- Mr Li (the university student)
The third individual to join this exclusive set was a Mr Yang Li. Mr Li, a masters student at the University of Bath, was unsatisfied with the 37% mark he was awarded for a 12,000 word essay; the pass mark was 40%. He was given three options by his professor: appeal the mark; resubmit the essay; or withdraw from the course. Mr Li proposed a fourth option. He placed £5,000 on the table, stated that he was a “businessman” and told the professor he could keep the money if the mark was raised. The professor refused. As Mr Li replaced the money in this pocket, he dropped an imitation firearm on the floor, which had presumably been brought as a back-up in case his first attempt at coercion was unsuccessful. The police were called in and Mr Li was prosecuted.
In April 2013, Mr Li was jailed for 12 months (both for the attempted bribery and for possession of an imitation firearm) and ordered to pay £4,800 in costs.
It would also appear that, following a successful prosecution under the Act, a custodial sentence is pretty much inevitable. At best, a plea in mitigation is likely to focus on obtaining a suspended sentence.
These cases go to reinforce the point that there is no de minimis requirement applicable to prosecutions under the Act; the Director of Public Prosecutions would have authorised all three prosecutions. Whilst the Serious Fraud Office may not be interested in such low value bribery incidents, it is clear that police will investigate and obtain consent to prosecute such matters. The SFO does not have a monopoly on prosecutions for bribery.
The question remains as to whether the police and DPP will turn their attentions to the commercial sphere. The first three prosecutions all involve some element of bribery of a public (or at least quasi-public) official. In their sentencing remarks, all three judges stressed the importance of court systems, vehicle licensing tests and university examinations respectively being administered fairly; the risk of undermining public confidence in such institutions clearly weighed heavily. So whilst it remains to be seen whether the police would venture into a purely commercial bribery scenario, it would be unwise to think that only the SFO is interested in corporate corruption. If the case against a Defendant is well established by the police, the DPP may we be willing to approve prosecutions in a commercial context that are below the financial threshold that would pique the interest of the SFO.