Sunday, 15 January 2012

The Bribery Act 2010, and the Court Clerk

One big issue in UK corporate wrongdoing at the moment is the coming into force of the Bribery Act 2010. There are many discussions to be had about it, and all of them are to an extent fruitless because there is hardly any case law on it. We can wonder how much more far reaching it will be than the old common law offence, and whether its seemingly large ambit will result in a deluge of cases where companies have been deemed too generous with their corporate hospitality, or where companies have ‘bribed’ a foreign official in a very different sort of jurisdiction.
Enforcement is a critical issue in crime (and law) generally. Some Jurisprudes think that a ‘legal system’ has to be generally efficacious to qualify as a legal system (H.L.A Hart did, for example). There has to be a question as to the point of a specific rule if it won’t be enforced, or will be enforced with too much discretion – think of the murky waters of euthanasia. As a more frivolous example, my primary school headmistress banned ‘lifting your feet’ in the playground. This was to prevent kicking, boisterous behaviour, and high-jinx. Only discretion stopped ‘walking’ being punishable by a stern reprimand by the blue-rinsed teaching assistant.
So for now we wait to see if the Bribery Act is a ‘toothless wonder’[1] or whether the ‘opportunity’[2] to crackdown on bribery will be taken.
Another aspect of enforcement is sentencing. Again, the sentences meted out to corporations are an area of contention – a contention often being that the available punishments are not severe enough, and further, are not even utilised to their fullest extent. Here, some reports are suggesting we do have some meaningful suggestions as to how the courts will act in Bribery Act cases.
Legal Week ran ‘First Bribery Act sentencing sees former court clerk handed six-year term’. This is a really poor headline. The court clerk got six years for misconduct in a public office. He got a concurrent three year sentence under the Bribery Act. At Crown Court level.
This tells us next to nothing as to how severe sentences will be. The 10 year maximum in the legislation shows that it’s meant to be pretty fierce, but until we have sentencing guidelines or an appeal court decision, we only have a sentence in the Crown Court, where we could have just picked a number between 0-6, given the misconduct charge. But the headline ‘First Bribery Act sentencing essentially pointless and gives no guidance’ would be less grabbing.

[1]Aaronberg and Higgins All Hail the Bribery Act – The Toothless Wonder!’ Archbold Review 2011, 6, 5-6
[2] Alexander, The Bribery Act 2010 in force: an opportunity to be taken, 2011 Comp. Law. 353 

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