[1]This guest post is from Geoff Martin [2], an Associate from Baker & McKenzie’s London office currently working with the firm’s Compliance & Investigations Group in Washington, DC.
U.K. Bribery Act came into force in July 2011. At that time, the Act was heralded as a key part of a new global wave of robust anti-corruption legislation with the promise of a marked increase in enforcement.
In the three years that have followed, there has neither been the volume nor the profile of Bribery Act enforcement that some had predicted. Indeed, there has yet to be a single corporate conviction under the Act. The cases that have been brought to-date all involve relatively small-scale domestic bribery by individuals. This is in contrast to the multi-million dollar instances of complex international corruption matters that continue to be the subject of U.S. FCPA enforcement.
There are a number of factors that may help to explain the relatively limited enforcement activity under the Act, including that:
- Bribery Act charges can only be brought related to conduct that occurred after the Bribery Act came to force (July 2011). The length of time that it takes to properly investigate and prosecute these complex cases inevitably results in a long pipeline of matters that date back several years. In comparison, the facts that give rise to a significant percentage of recent U.S. FCPA settlements date back years and sometimes decades — often long before the Bribery Act came into force in the U.K.
- Until recently U.K. prosecutors have not had the same armory of enforcement tools that are available to their U.S. counterparts. However, for the first time, from February 2014, deferred prosecution agreements are now available to U.K. prosecutors. Among other things, deferred prosecution agreements can help facilitate the relatively efficient settlement of corporate cases, including those brought under the Bribery Act. The extent to which U.K. prosecutors will use such agreements to resolve corruption cases, as their U.S. counterparts have done, however, remains to be seen.
- Whilst U.S. FCPA enforcement is driven, at least in part, by a well established, and widely used, regime for corporate voluntary disclosure of corruption issues, the potential benefits for companies using the analogous U.K. voluntary disclosure regime, introduced in conjunction with the Bribery Act, remain to be fully tested.
Nevertheless, U.K. prosecutors have continued to investigate and charge individuals and companies with corruption related offences pre-dating the Bribery Act. Notable recent matters include:
- August 2014 – three individuals were given prison sentences (of between 18 months and 4 years) and another received a suspended sentence, for their roles in bribing public officials in Indonesia and Iraq. Their company, Innospec, itself pleaded guilty in March 2010 to bribing public officials in Indonesia and was fined U.S. $12.7M in in the U.K. with additional penalties (of U.S. $27.5M) being imposed in the U.S. for related FCPA violations.
- July 2014 – a U.K. subsidiary of Alstom was charged with three counts of corruption. The alleged offences are said to have taken place between June 2000 and November 2006 and concern large transport projects in India, Poland and Tunisia.
- July 2014 – Bruce Hall was sentenced to 16 months in prison in the U.K. for receipt of payments and conspiracy to bribe, in relation to Bahraini aluminum contracts. His conviction arose from facts implicated in the Alcoa U.S. FCPA settlement of January 2014.
Meanwhile, the Serious Fraud Office (SFO), the agency with primary responsibility for investigating and prosecuting significant financial crime and bribery in the U.K., is investigating, and has yet to resolve, several significant, high-profile corruption matters. In particular the SFO has formally announced ongoing investigations of U.K. headquartered companies, Rolls Royce (in December 2013) and GlaxoSmithKlein (in May 2014). How the SFO handles these and other high profile instances of international corruption in the coming months and years will be an important indicator of the progress of U.K. anti-corruption enforcement in the Bribery Act era.
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