Within months of the Bribery Act 2010 coming into force, the Crown Prosecution Service (“CPS”) has secured the first ever conviction under the Act. On 18 November, Munir Patel, a magistrates’ court clerk who pleaded guilty in October to soliciting and receiving a bribe of £500 for removing motoring offences from official records, was handed a six year prison sentence at Southwark Crown Court.
The Patel case is plainly a very far cry from the type of case the Serious Fraud Office (“SFO”) would have hoped for in pushing its well-publicised agenda of using the Act in its fight against international corruption and advertising the new tools in its armoury, such as broader extraterritorial reach, corporate liability under section 7 and the benefits of self-reporting. Nonetheless, it carries some important lessons that companies and individuals subject to the Act would be well advised to consider very carefully.
Severity of Sentence
Patel’s sentence consisted of three years for a single offence of active bribery under section 2 of the Act (i.e. the receipt of one £500 bribe), running concurrently with a six-year sentence for the common law offence of misconduct in public office. The sentence would have been even greater but for a one-third discount given to Patel for his early guilty plea. In sentencing, HHJ Alistair McCreath reflected the fact that Patel – whom the judge identified as a “prime mover” in the corrupt scheme – had been soliciting bribes for well over a year and that there were at least 53 instances where he had “manipulated the process” by removing evidence of offenders’ motoring fines, penalty points and disqualifications from the court’s computer systems. Patel’s financial reward – £20,000 – was described by the judge as “significant” and as Patel’s “only motivation”.
HHJ McCreath left little doubt in his sentencing remarks that the courts will treat corrupt officials extremely harshly: “it is important that those who are tempted to behave in this way understand that there will be serious consequences. Sentences for this sort of offence must act to deter offending of this kind.”
The question remains, however, whether the severity of Patel’s custodial sentence was primarily a function of his particular position within the criminal justice system or indicative of a broader trend in sentencing for bribery. The judge certainly repeatedly seized on Patel’s function as a court clerk whose position “had at its heart a duty to uphold and protect the integrity of the criminal justice process”, adding that “[t]he public would expect and rightly expect the courts to take strong action to protect and defend the integrity of the justice system.”
The judge also emphasised that the harm caused by Patel went more broadly than just to the process, in that his conduct had grave consequences on the monitoring and deterrent regime established through the penalty points system, as well as distorting the operation of the motor insurance industry in insuring (good and bad) drivers at appropriate cost. All of these factors were clearly argued forcefully by the CPS and no doubt at the forefront of the judge’s mind in imposing the six-year headline sentence for misconduct in public office.
While the peculiarities of the case are thus very clear, the extremity of the sentence for the section 2 offence simply cannot be overlooked. A three-year sentence for receipt of a single £500 cash bribe is severe on any view, regardless of the extent to which it was informed by and running concurrently with the misconduct sentence, which was based on a longer pattern of corrupt conduct.
Recent sentences for offences under the Act’s predecessor legislation bring this into sharp focus; they include a suspended 12-month sentence for Robert Dougall of DePuy International in April 2010 in relation to his involvement in bribing Greek healthcare officials to win business and a 21-month sentence for Julian Messent of PWS International in October 2010 on two counts of making corrupt payments to Costa Rican officials totalling almost $2 million.
In September 2008, a Ugandan government official was sentenced at Southwark Crown Court to 12 months in jail for accepting corrupt payments totalling £83,000 from a UK security firm. In November 2007, in a case of commercial bribery, the purchasing manager of a large retailer received a sentence of 2 years for accepting bribes—but the bribes were worth £1 million. Seen against this background, Patel’s three-year sentence for receiving a relatively small amount appears to set down a marker for the way bribery offences will be dealt with by the courts going forward – with the firmest possible hand.
Factors similar to those in the Patel case, based on the importance of upholding and protecting the integrity of public administration, will likely be prevalent in the sentencing of other officials under the Act and potentially also to cases of active bribery of foreign public officials under section 6.
It is difficult to see, for example, why a sentencing judge would take a lesser view of the need for harsh and deterrent sanctions to be applied against international businesspeople seeking to corrupt third-world officials with financially significant inducements in return for business, than they would of the need to preserve the workings of the English criminal justice system.
Both aims are deserving of protection. As Lord Justice Thomas stated in R. v. Innospec, “Those who commit such serious crimes as corruption of senior foreign government officials must not be viewed or treated in any different way to other criminals.” Richard Alderman, the Director of the SFO has similarly stated that he is looking to bring charges under the Bribery Act against individual officers of companies to ensure that company directors take their responsibility seriously—pour encourager les autres, as it were.
The combination of the increase in the maximum custodial sentence under the Act from 7 to 10 years, the SFO’s sustained efforts at promoting its aggressive new agenda under the Act and its need to back that up with commensurate convictions, as well as the calls from the judiciary for appropriate levels of punishment, all signal that we will start seeing harsher individual sentences under the Act. This prediction has only been reinforced by the Patel case. Company directors and officers beware.
Written by Debevoise & Plimpton partner Karolos Seeger and associates Matt Getz and Gaurav Sharma.