Bribery Act & Proceeds of Crime - Written by on Thursday, November 17, 2011 17:18 - 1 Comment

What do Mars bars and the first Bribery Act prosecution have in common?

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Munir Patel the first person convicted of a Bribery Act offence was originally scheduled to be sentenced on 11 November 2011 – UPDATED we do not yet know the sentence imposed but is in fact being was sentenced today, Friday 18th November [Ed: we’ll let you know the outcome later]. Mr. Patel received 6 years 3 for the Bribery Act offence and 6 for Misconduct in Public Office – we’ll give you our thoughts and analysis on this in a future post(s).  The prosecution generated plenty of press coverage and many decried it as a wasted opportunity.

Putting the prosecution in context we argued that, like it or not, unlike the US FCPA the UK Bribery Act criminalises all bribery – commercial and governmental and domestic and international.  The upshot – a prosaic domestic UK Bribery case should not have been a surprise – indeed the likelihood that cases like this will produce a bank of legal precedent to assist in interpreting the Bribery Act should be viewed as a good thing.

We asked Zoe Jacob, a talented pupil (trainee barrister) at 6 KBW, to write a short (abridged) history of Bribery cases in the UK.

By Zoe Jacob

A few weeks ago the first Prosecution under s.2 of the Bribery Act 2010 took place at the Crown Court sitting at Southwark. Munir Patel, an administrative officer at Redbridge Magistrates’ Court was held to have taken £500 by way of a bribe to ‘get rid of a speeding charge’.

In many ways this was a milestone in criminal justice; a much discussed and publicised piece of legislation was successfully put into action. The Prosecution of individuals for bribery in a domestic context is not however, a new phenomenon; bribery has been an offence for many years. The following cases illustrate successful prosecutions starting from nearly a century before the Bribery Act came into force and make interesting reading.

Back in the day…soldier gets himself in a mess & makes the most of it

In 1914 Mr Whittaker was the commanding officer of the Second Battalion of the King’s Own Yorkshire Light Infantry. He chose who would supply the mess canteen with food and beer. He took bribes in exchange for ensuring certain contracts were put into place. He received a 6 month custodial sentence which the Court of Criminal Appeal held not to be excessive given the seriousness of the offence.

Fast forward.

Mars bars and prison bars

Mr Welcher was employed by Mars and was responsible for contracts for maintenance and repair of its machinery. This was carried out by precision specialists, Excel. For over a decade Mr Welcher authorised overpayments to Excel, and received bribes in return. Mr Welcher was tried with a number of co-defendants at Excel who made a gain of over £3m over the course of a decade. All were convicted of conspiracy to corrupt and conspiracy to defraud. Another Mars employee was also convicted. Sentences ranged from between 15 months to several years behind metal (as opposed to chocolate) bars.

The case is interesting on another couple of counts.

First, it is a purely commercial bribery case. Second, the bribery emerged following the sale of a business. An SFO press release records:

“In 2001 Excel Engineering was sold to new owners but thereafter the volume of business and income did not match past levels. It became apparent to the new owners that the company’s success had been largely dependant on contracts from Mars in return for improper inducements. These bribes were usually in the form of regular cash payments, or in the form of gifts, to Tony Welcher and to others, including Georgina Welcher. Examples include electrical items, power tools, car hire, garden furniture and equipment, domestic boilers, cameras and car repairs/metalwork. The Welchers’ home was fitted with a conservatory which was paid for in part by Excel Engineering. The cost of the conservatory was ultimately recouped by Excel Engineering by over-charging Mars.

Suspicions were reported by the new owners of Excel Engineering to Thames Valley Police and then referred to the SFO in summer 2002.”

Council employee and the £100 bung

Mr Bush was heating manager for a London Borough Council. He approached the director of heating company and offered to put him on the contracts list for the Borough for payments of £100 per week. This arrangement continued for six years, during which time Mr Bush also received two one off payments of £1000 and free work by the contractor at his home. There was a total benefit of £40,000. Mr Bush was convicted of corruption.

Policeman unlawfully accesses the Police National Computer…(sound familiar?)

Mr Kasim was a Police Officer who met a Saudi Arabian Diplomat at his children’s school. He used his access to the Police National Computer to make various enquiries into Middle-Eastern individuals, as requested by the diplomat. He received cash payments of approximately £14,000 in exchange for this information. He pleaded guilty to three counts of misconduct in a public office.

The lesson from all these cases is that in terms of domestic bribery the Bribery Act picks up where the previous legislation and common law left off.

Expect more cases like those of Mr.Munir.

Zoe Jacob

Pupil, 6 King’s Bench Walk

 

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James Vine (@JamesPSVine)
Nov 18, 2011 3:12

Could not agree more. Well Done Zoe.
Also important to point out this passage from the joint SFO/CPS guidance on prosecutions under the Bribery 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 test”

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