Bribery Act & Proceeds of Crime - Written by on Tuesday, November 22, 2011 21:08 - 1 Comment

Never judge a book by its cover: Why the first ‘Bribery Act’ case isn’t

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By Neil Mcinnes, Senior Associate, Pinsent Masons LLP

As we reported here, last week Munir Patel became the first person to be sentenced for an offence under the new Bribery Act. He received 3 years imprisonment for a single section 2 offence of receiving a bribe, concurrent with 6 years for misconduct in public office. He had pleaded guilty to both matters at an earlier hearing. Both offences related to his role as a Magistrates’ Court clerk. But it is this employment with the Ministry of Justice that is the defining (and only) notable feature of the case.

The facts are well-known but here they are in brief: on the bribery charge, Mr Patel accepted cash in return for not putting details of someone’s traffic offence on a court database; on the wider misconduct, for over a year, he assisted those guilty of other road traffic crimes to avoid their fines, driving disqualifications or the imposition of penalty points on their licences, involving at least 53 separate cases. The court found Mr Patel was the prime mover in all of this and that the financial reward was not insignificant – at least £20,000.

And, one of the reasons the case has attracted particular media attention, Mr Patel’s wrongdoing lay undetected until it was unravelled by an undercover journalist’s sting.What does the case tell us more widely about how the Courts will approach the new Act? Very little. To suggest it should be a greater warning sign for a corporate wrongdoer or an agnostic company director is going too far; and even on a black letter law basis, it does not offer us a reliable marker of how other cases under the Bribery Act will be treated by the courts.

Why not?

1.      As is clear from the facts, this was an unusual case, almost a one-off, involving a defendant whose role as a court clerk involved an exceptional position of trust, which “had at its heart a duty to uphold and protect the integrity of the criminal justice system”, adopting the words of the sentencing judge, HHJ McCreath. The courts when punishing ‘one of their own’ can be expected to take a particularly tough line. No great shakes there.

2.      The case could and would no doubt have been prosecuted under pre-Bribery Act laws if necessary. Section 2 in this case added nothing to the CPS’ armoury compared with the old law. The only academic issue is whether pegging a misconduct offence with a Bribery Act charge will be more rare in future, when it will be increasingly common for all allegations to post-date 1 July. Not much to get excited about.

3.      Is Mr Patel’s case being seen as significant by the courts? A reason to take note, if so. The publication of the sentencing remarks on the judiciary’s own website here might suggest it should be read as a particularly important precedent. The better view is that it is simply high profile and made the editor’s cut on that basis alone.

4.      The sentencing in this case is more about the old law than the new. The headline 6 year sentence is for the misconduct charge and the Bribery Act offence is sentenced in the slipstream.

5.      What if there are lessons from Mr Patel’s case that can drawn from looking at misconduct aspect of his sentence? Even then, as we can see from the below, that contention seems tortuous.

Misconduct in public office

Few would disagree that Mr Patel’s six year sentence for misconduct is a lengthy sentence in comparison to some comparable pre-Bribery Act cases of misconduct in public office. But it is as step too far to interpret this as a new watermark for all corruption related offences involving public officials in positions of a high degree of trust.

Here it is important that the six year sentence is not without pre-Bribery Act era precedent. In 2008, the Court of Appeal upheld a sentence of nine years for an Immigration and Nationality Directorate officer who was convicted after a trial of issuing refugee passports for financial gain to those not entitled to them (R v John-Ayo (Mofeyishola) [2008] EWCA Crim 1651). As confirmed by the sentencing judge in Mr Patel’s case, that is the same sentence Mr Patel would have received had he not pleaded guilty. (The 2008 case had also involved multiple instances of wrongdoing in a period of over a year).

Therefore the better way to interpret Mr Patel’s case is to understand the non-Bribery Act offence and how it is necessarily restricted to its exceptional facts.

Misconduct in public office is an ancient crime in comparison to the 2010 Act. It might be seen as the more evil twin of public sector bribery. It involves conduct that is such an abuse of power that it inexorably requires a deterrent prosecution and similar sentence to mark public revulsion. It is used, in other words, when a public official has let us down so badly that prosecution lawyers have been unable to find a suitable statutory offence to meet the gravity of the wrongdoing and must turn instead to the common law to restore public confidence.

The leading authorities describe the wrongdoing that qualifies for this common law offence as that “calculated to injure the public interest so as to call for condemnation and punishment”  (R v Dytham [1979] QB 722) or which is “an affront to the standing of the public office held” (Attorney-General’s Reference (No. 3 of 2003) [2004] 2 Cr.App.R 23 CA.)

So Munir Patel’s sentence should be read in this context, as illustrated by the following remarks of the sentencing judge:

“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.“The public would expect and rightly expect the courts to take strong action to protect and defend the integrity of the justice system”.

The first Bribery Act case will undoubtedly draw crowds and may be a game-changer. Despite outward appearances, Mr Patel’s case is not it.

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James Vine (@JamesPSVine)
Nov 24, 2011 3:19

Neil. Agree with everything you say.
One additional important factor is that the Misconduct count covered activity over the course of a year or more, whereas in view of the fact that Patel was charged with the Bribery Act offence in August, (was it a specimen count relating to the Sun journalist?) his Bribery Act activity could only have covered a period of weeks at most since the Act came into force on 1st July.

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