Accusations of bribery and corruption are among the most serious and disruptive an organisation or individual can face. The issues are often complex and usually involve overseas jurisdictions, counterparties with connections to foreign states, and concurrent internal and law enforcement investigations.
To deal with bribery and corruption allegations effectively calls for a highly strategic approach as early as possible.
The Bribery Act 2010 brought in a raft of changes which have had a significant impact on the way bribery and corruption cases are dealt with in England and Wales.
One of the Act’s most important changes was to introduce ‘corporate liability’ for companies which fail to prevent bribery. It also extended the UK’s legislative reach overseas and criminalised facilitation payments.
In 2014 the legal landscape was further altered with the introduction into the UK of Deferred Prosecution Agreements (DPAs). DPAs give a corporate the option of admitting wrongdoing in exchange for the certainty of avoiding prosecution, albeit with conditions that are likely to include significant financial penalties.
The 2010 Bribery Act and the introductions of DPA have significantly complicated the position for individuals under investigation in bribery and corruption cases. For individuals in these high-stakes matterss, there may now be a real risk of being blamed for wrongdoing as part of the settlement narrative agreed between the company and law enforcement, with potentially serious and unfair consequences.
Bribery and corruption matters form a significant part of the SFO’s caseload. SFO investigations usually involve allegations of bribery overseas, rely heavily on data (emails, messaging and other communication records and financial data), and will include the use of compulsory powers to seize material and compel answers from witnesses. These investigations are long running and usually take years to conclude.
Bribery and corruption investigations often straddle more than one jurisdiction with multiple law enforcement agencies investigating the same or overlapping allegations. To help achieve this the SFO has developed close working relationships with counterparts in other jurisdictions such as the Department of Justice in the US.
The 2020 Airbus case, in which Airbus reached a DPA agreement with SFO alongside other similar agreements with law enforcement in the US and France, illustrates this trend towards global settlements for companies.
Coordinating a strategic response that addresses these considerations is essential.
The advent DPAs has meant that any company accused of bribery or corruption offences, may well decide that its interests are best served with a Deferred Prosecution Agreement. However, in order to secure such a deal a company has to admit that the relevant underlying bribery was carried out by one or more named individuals.
This raises real risks of conflict arising between the company and the individual. Individuals may find themselves unjustly blamed by their employers either for actions that did not take place, or for the actions of others. Such an individual’s situation would be further complicated if he or she were to be called by the company to give an account as part of an internal investigation.
Any individual who suspects they may be caught up in an internal bribery or corruption investigation is advised to take independent advice at an early stage.
The SFO have far-reaching investigatory powers. Under section 2 of Criminal Justice Act 1987, anyone may be compelled to attend an interview and to answer questions (there are very few exceptions to this requirement). Although compelled answers cannot usually be used against an individual in a subsequent prosecution, in recent cases the SFO has treated as suspects some individuals who were first interviewed under these powers.
For more than a decade, H&R has been involved in almost all the SFO’s major overseas bribery and corruption investigations. Matters in which our lawyers have acted include SFO investigations into bribery and corruption involving Petrofac, ENRC, Amec Foster Wheeler, BAT, Airbus, Chemring, EFT, Balfour Beatty, Macmillan Publishing, Rolls-Royce and Unaoil.
We have been at the forefront of matters in which prosecution of individuals has followed a DPA agreed between the SFO and the company. We acted for Chris Bush, the former Managing Director of Tesco UK Ltd, who was prosecuted after the company agreed a DPA with the SFO in which he was named as a wrongdoer. The case against him was thrown out by the trial Judge who, having heard six weeks of prosecution evidence concluded there was no case to answer.
As well as acting for suspects, we have long experience of acting for individuals who become caught up in an investigation as witnesses or potential witnesses and those who are interviewed under compulsory powers.
The firm has experience of bribery and corruption investigations by other law enforcement agencies including the National Crime Agency and the police. Many of our cases involve parallel investigations and overseas law enforcement agencies. We have great experience in these cases working alongside the best lawyers in other jurisdictions.
As well as advising individuals we also act for companies, charities and other organisations addressing allegations of bribery and corruption and have experience of conducting internal investigations on their behalf.
15 Jul 2021
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