The Serious Fraud Office ("SFO") confirmed in December 2015 that the Sweett Group ("Sweett") had admitted an offence under Section 7 of the Bribery Act 2010 regarding conduct in the Middle East.
This announcement follows an SFO investigation which commenced in July 2014. The investigation was triggered after the Wall Street Journal reported in 2013 that a former director had solicited a bribe from a New York-based architecture firm in return for work on a hospital construction in Morocco. According to the Wall Street Journal, the architect would be awarded the contract if it agreed to pay 3.5% of the contract value to an official from the UAE president's foundation which was funding the project. The former director operated in Dubai for a subsidiary of Sweett.
Sweett initially investigated the allegations internally but found no wrongdoing. It later instructed lawyers to carry out further investigation and informed both the SFO and US Department of Justice of its concerns. Sweett announced that it would cooperate with a formal SFO investigation.
Following recent confirmation of a conviction in December 2015, the company announced that it had admitted to a charge of "failing to prevent an associated person bribing another to obtain or retain business for the company".
The corporate offence is defined in section 7 of the Bribery Act 2010. It states that a commercial organisation is guilty of an offence if a person associated with a company bribes another person intending to obtain/retain business or a competitive advantage for the commercial organisation. A commercial organisation will have a defence if it can show that it had adequate procedures in place designed to prevent persons associated with the commercial organisation from undertaking such conduct.
The SFO will prosecute if it is in the public interest to do so. In instances where a commercial organisation has reported itself to the SFO, this will be taken into consideration as a public interest factor tending against prosecution. The SFO stipulate that the Self Report must form part of a proactive approach adopted by the management team when the offence is brought to its attention. The SFO will consider Self Reporting on an individual basis and so there is no guarantee that a prosecution will not follow.
In the case of Sweett the impact has been widespread:
- The company has reportedly incurred costs of £490,000 associated with its internal investigation;
- The company has had to appoint a new finance director, chairman and chief executive;
- When the conviction was announced, Sweett's share price dropped considerably;
- Sweett will withdraw from the Middle East market; and
- A fine will likely be imposed on Sweett.
Notably, Sweett will not face a mandatory debarment from public sector tendering in the UK or US.
This announcement marks the first conviction for the SFO under the Bribery Act and comes hot on the heels of the SFO's first Deferred Prosecution Agreement, which we reported on in the December 2015 Banking and Finance issue. It is a positive step forward for the SFO who have previously been criticised for not securing any convictions since bribery laws were changed in 2011.
The UK's bribery laws need to be taken very seriously. Where Corporates have a multi-national presence and deal with suppliers and customers in a variety of jurisdictions where laws and attitudes vary widely to the manner in which business is conducted, a high level of due diligence and monitoring is required, not just at the outset of a relationship, but on an ongoing basis. Further, when an issue is identified Self Reports have to be considered very carefully in order to ensure, so far as is possible, the extent to which the Corporate can maintain control of the investigation and outcome.