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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
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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
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