I have been sitting for a while on one of those legal updates which the New Law Journal produces from time to time for which they gather a group of experts round a table and report their discussion in a high-quality pamphlet. One, headed Enforcement Matters – How Bribery Act-compliant is UK Plc? must inevitably have a technology expert at the table. That role was taken by Drew Macaulay, Business Development Director at First Advantage Litigation Consulting in London, whose photograph and quotation appear at the top of the article.
I held onto this one not merely because I and most of the potential audience have been away, but because it seemed possible that the Serious Fraud Office would choose to time its first prosecution to catch our attention as we all got back to our desks. That is not as cynical a motive on their part as might appear – there is good reason why Drew Macaulay’s quotation “… will [the SFO] be given the bodies to get the job done?” comes at the top of the article: the prosecuting authorities have small resources relative to the task they have been given. We have all been waiting with interest to see where the SFO strikes first, and it would be foolish of them to blow the publicity value of the first charges by announcing them in August.
Much of the discussion at the roundtable was about the SFO’s first potential targets, with some of the betting money going on SMEs who might “hope they will fall beneath the regulator’s radar”, and some on a company domiciled outside the UK but doing business within it – both entirely plausible as examples with the widest ripple effect.
In the event, none of us accurately predicted the nature of the first “victim”, nor was the prosecution brought by the SFO as expected, but by the Crown Prosecution Service. The CPS has announced that it is bringing charges against Munir Patel, a court clerk at Redbridge, Ilford, who faces a charge under Section 2 of the Bribery Act 2010 for requesting and receiving a bribe intending to improperly performed his functions. Patel also faces charges for misconduct in public office and perverting the course of justice.
For all my references to the publicity value of the first announcement, this one came up when it did because a newspaper produced the evidence and not for any perceived timing value. I saw a rather cynical tweet suggesting that the City would be relieved that the prosecuting authorities picked a target which was not one of them. I don’t think we will have to wait long before seeing a prosecution of the kind discussed at the roundtable – not necessarily a big company, but one deliberately chosen to send tremors round the widest range of companies.
It seems unlikely that Patel’s prosecution will involve much in the way of electronic evidence beyond the video and tape-recorded material which was apparently obtained by the newspaper. The more conventional prosecutions yet to come will, however, almost inevitably make use of electronic disclosure tools and techniques of the kind available from First Advantage and other e-disclosure service providers. As with the litigation and regulatory investigations with which companies like First Advantage are very familiar, the prosecutor will have a range of sophisticated tools available to him, and the company will need to match them if it is to find the evidence in its own material. Allison Stanton, responsible for civil eDiscovery at the US Department of Justice, emphasised at a recent London conference that a prosecutor who has cause to look will find the documents if they exist. Most companies would rather that they found them first, particularly if they seek to rely on the defence of “adequate procedures” which exists in relation to the corporate offence of failing to prevent bribery. How adequate are your procedures, the prosecutor may muse, if we can find your incriminating documents before you can?
The New Law Journal report is a timely reminder of the implications of the Bribery Act just in case companies are tempted to let it slip off the agenda. It would obviously be a good idea to note down the names of a couple of the companies which, like First Advantage, offer eDisclosure services, against the day when the prosecution authorities first show an interest. If I were sitting on the board of a company, faced with the prospect – or even the possibility – of the resulting firestorm, I would do more than note down the Fire Brigade’s number. I would be getting them round now to help me plan to avoid that interest being shown at all.