OCTOBER 2013
Legal Focus organisations which fail to prevent bribery2 . The
combination of potential secondary criminal liability for the unknown actions of others combined with a readily attainable panacea in the form of the 'adequate procedures' defence has prompted a substantial investment in procedures for preventing bribery by UK Plc and, as such, the Act has been effective in encouraging anti-corruption compliance. However many companies recognise that they have a long way to go before they can claim to have a really first rate anti-corruption compliance system.3
It is in relation to the third objective where, in some quarters, there are question marks as to whether the Act has been effective and, increasingly, there is a feeling of anti-climax in relation to the level of enforcement since its implementation. Let us now turn to the question of whether this feeling of anti-climax is justified.
The SFO is the lead agency in England and Wales for investigating and prosecuting cases of domestic and overseas corruption. The City of London Police fulfils a national role in investigating economic crime and the Crown Prosecution Service ('CPS') prosecutes domestic and overseas bribery cases investigated by the police.
To date, the CPS has successfully completed three prosecutions of individuals under the Bribery Act. The first person to be prosecuted was Munir Yakub Patel, an administrative clerk at Redbridge Magistrates' Court. Mr Patel pleaded guilty to requesting and receiving a bribe/misconduct in public office and was sentenced to six years'
commercial organisations for failure to prevent bribery.
Many commentators have been quick to criticise the SFO for its track record in relation to enforcement of the Act whereas the reality may be that the SFO is a specialist agency which aims to take action against the most serious and complex misconduct and its investigations necessarily take a long time to complete. As such, whether or not the SFO will surprise its many detractors and live up to legitimate expectations of bribery enforcement remains to be seen. Our expectation is that, in the absence of additional funding, the volume of individuals prosecuted by the SFO for overseas bribery will gradually increase over the next few years before plateauing in accordance with budgetary constraints.
In relation to the failure to prevent bribery offence, we predict that the bulk of the enforcement action will derive from self- reporting commercial organisations following the implementation of the Deferred Prosecution Agreements regime which is expected to be available by February 2014.
What are the main challenges that arise within this practice area?
In the wake of the financial crisis, criminal and regulatory law enforcement is increasingly conducted on a global
81
scale, with imprisonment,
subsequently reduced to four years' imprisonment on appeal. The second person to be prosecuted was Mawia Mushtaq. Mr Mushtaq was convicted of offering a bribe to a council licensing officer after failing his driving test for a private-hire licence and was sentenced to two months'
investigations of corruption, cartels, tax evasion and financial markets offences spanning multiple jurisdictions and involving a joined-up approach by the UK and the US authorities in conjunction with other overseas law enforcement agencies. In this increasingly global environment, the main challenge is to ensure that an integrated approach is taken to crafting comprehensive multi-jurisdictional solutions. LM
imprisonment
suspended for 12 months and a two-month curfew order. The third person to be prosecuted was Yang Li, a student at Bath University. Mr Li was convicted of trying to bribe his tutor to obtain a pass mark while carrying a loaded air pistol and was sentenced to 12 months imprisonment for bribery and six months for possession of an imitation firearm, to run concurrently. None of those cases involved bribery outside of the UK.
Unlike the CPS, the SFO has not successfully prosecuted any individuals, as yet, however it recently announced that it has charged three men with offences under the Bribery Act (as well as offences of conspiracy to commit fraud/ furnish false information). The SFO have not commenced any prosecutions against
www.lawyer-monthly.com
contact: Mark Beardsworth Partner t: +44.20.7851.6068 E:
mbeardsworth@brownrudnick.com
charles Froud associate t: +44.20.7851.6105 E:
cfroud@brownrudnick.com
tom Epps Partner t: +44.20.7851.6010 E:
tepps@brownrudnick.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140