How significant is the SFO’s first Bribery Act prosecution?
On 14 August 2013, the Serious Fraud Office announced that three individuals have been charged with offences under the Bribery Act in connection with the promotion and sale of so-called “biofuel” investments. Whilst charges have previously been brought by the Crown Prosecution Service, this is understood to be the first Bribery Act prosecution by the SFO itself and it has therefore attracted widespread coverage.
The Bribery Act was passed in the final days of the last government and came into force to much fanfare in the summer of 2011. To its critics, the act was at risk of undermining the competitiveness of UK plc; to its supporters, it was finally set to overhaul the UK’s patchy (at best) track record of tackling the scourge of international corruption. But both camps generally agreed that the new regime was state of the art and tough.
Fast-forward two years, and much of the landscape has changed. The SFO, intended to be the lead prosecutor for corruption offences, has been in turmoil. As if the negative PR surrounding its bungled handling of the Tchenguiz affair were not enough, the SFO has suffered the indignity of its own financial affairs under its former director, Richard Alderman, being very publicly called into question. And only last week it suffered yet further embarrassment over the supposed loss of confidential material relating to its previous investigation into BAE Systems.
At the same time, the absence of any corporate prosecutions under the Bribery Act has been widely noted. Indeed, the only case to attract any significant attention was the prosecution in late 2011 of a court clerk who accepted a bung in exchange for “hiding” a speeding penalty. Perhaps unsurprisingly, corruption has, at least in some quarters, been allowed to slip down the boardroom agenda amidst a growing perception that the act was over-hyped.
Does this announcement by the SFO show that the Bribery Act does have teeth after all? Not in and of itself. This was in essence an investment fraud, where the principal charges are well-established ones of conspiracy to commit fraud by false representation and to furnish false information. Nor does this case involve a corporate prosecution, most likely because the Sustainable Growth group of companies, to which the charges relate, was put into administration in March 2012. As such, it offers no guidance on the approach the SFO will take, under its new director David Green QC, to the scope of businesses’ liability for third parties or the “adequate procedures” defence.
But it is increasingly clear that further Bribery Act prosecutions are in the pipeline and will start to make headlines over the coming months. Green has previously emphasised that he is “not going to rush for glory on this. I want the right case at the right time”.
In circumstances where the act only applies to conduct after July 2011, and the SFO’s remit is only to handle the most complex and challenging of cases, it is hardly surprising that it has taken time for prosecutions to come through.
Nevertheless, only last month Green went a step further and was quoted as saying that two further investigations are under way into companies suspected of breaching the act. In addition, the SFO has a number of other legacy cases on its hands which will continue to proceed under the pre-Bribery Act legislation, including its widely-publicised investigation into the Kazakh miner ENRC.
So, notwithstanding the tarnished reputation of the SFO, businesses can ill afford to overlook the risks in this area, and particularly in higher-risk jurisdictions. The recent press coverage focussing on the conduct of multinational healthcare companies in China, and allegations of widespread bribery of doctors and government officials, demonstrates that combating corruption remains high on the agenda of enforcement bodies around the world.
Michael Roberts is a commercial litigation partner at Hogan Lovells and a member of its investigations white collar and fraud practice