First Bribery Act prosecution - an opportunity missed

09 September 2011

The news of the first prosecution under the new Bribery Act will leave commentators and headline writers alike disappointed.

The case could have involved the Ministry of Justice (author of the Bribery Act guidance) itself being taken to one of its own courts but, in the end, the new corporate offence will not even come into play.

It was announced last week that the CPS would prosecute an administrative clerk from Redbridge Magistrates' Court for allegedly promising an individual summonsed for a motoring offence that he could influence the course of the criminal proceedings in exchange for £500. As the allegation involves 'passive bribery' (i.e.the receipt of a bribe), the prosecution will be under section 2 of the Bribery Act.

The much feared new offence (under section 7) of 'failure of commercial organisations to prevent bribery' does not come into play and so UK plc will have to wait a little longer for a test case on the application of the guidance issued under the Act. Not only is the MoJ's Court Service not a 'relevant commercial organisation', and nor was the alleged bribe to 'obtain or retain business' or 'an advantage in the conduct of business', but the case also highlights the point that there can be no section 7 corporate liability for an employee who receives a bribe.  The section 7 offence can only be committed by the commercial organisation for whose benefit the bribe was paid.

Therefore, although it would have made for good headlines if the first reported Bribery Act case had gone under the title "R v HM Court Service", news of the first prosecution is actually a damp squib.  The allegation, if proved, would have amounted to an offence under the old law.

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