Although the Bribery Act 2010 (the Act) only became effective in July 2011 pressure on the UK’s Serious Fraud Office (SFO) to charge has steadily risen. Now that wait is over. On August 14, the SFO charged three individuals with offenses under the Act, indicating that the time for active enforcement has commenced.
In a press release on the SFO’s website, the SFO charged four individuals, all associated with a bio fuels firm located in the UK, Sustainable AgroEnergy Plc, with offences alleging a conspiracy to commit fraud by false representation and conspiracy to furnish false information, contrary to section 1 of the Criminal Law Act 1977. Three of the individuals were also charged with bribery offences of making and accepting a financial advantage under section 1(1) and section 2(1) of the Bribery Act.
At this stage it is not clear how the case came to the SFO’s attention. All that is known is that the charges arise from the SFO’s investigation into the promotion and sale of “bio fuel” investment products, involving Jatropha tree plantations in South East Asia, to UK investors. The alleged fraud, said to have occurred between April 2011 and February 2012, is valued at approximately £23 million. As yet there is no information as to the value of the alleged bribe, or as to the nature of the “improper performance,” but the current assumption is that the allegations relate to commercial and domestic bribery.
Contrary to expectations, the first SFO Bribery Act case is not under the easier to prove Section 7 (failure to prevent bribery) offence, nor is it a blockbuster case against a corporate household name, nor even a case charging overseas bribery and corruption. Little will be therefore be gleaned as to definitions of the key terms under the Act, such as “adequate procedures,” “associated persons,” or “foreign public official.”
What can be gleaned is that the SFO will bring charges where and when it can and that no sector is immune from scrutiny. The case also provides a stark reminder that the Act is not limited to overseas public sector bribery, and company directors, members of company boards, and financial advisers can all be held accountable for their actions. Bearing in mind recent statements about the number of active SFO Bribery Act investigations and intelligence cases, this case is unlikely to herald a tsunami of charging decisions under the Act, but it does show that the ball is now rolling and that we may not have to wait too much longer for the first Section 7 case.