We reported back in 2012 that the UK’s Serious Fraud Office (“SFO”) had confirmed its commitment to enforcing the UK Bribery Act 2010 (“Bribery Act”) and that its new powers to prosecute bribery offences would remain an important tool in actions overseas.
So where are we now? In late 2013, the SFO charged printing company Smith & Ouzman Limited with offences of corruptly agreeing to make payments totaling nearly £500,000. Two of its directors, an employee and an agent have also been charged with the same offences and the trial is expected to take place in November 2014. The charges have however been brought under the Prevention of Corruption Act 1906, not the Bribery Act, as the alleged offences took place before the Bribery Act came into force.
The SFO had brought arguably its biggest case against corruption when it charged Victor Dahdaleh, one of Labour’s wealthiest backers, of making multimillion-pound payments to win lucrative contracts. The trial took place in December 2013, but collapsed after the main witness changed his evidence and two further witnesses, lawyers at US firm Akin Gump, declined to testify.
This is not the first high-profile mistake that has been made by the SFO during its attempts to prosecute white-collar crime. The SFO is being sued by the property tycoon Vincent Tchenguiz for a series of alleged injustices relating to his arrest in connection with the collapse of the Icelandic bank Kaupthing. It was forced, in 2006, by Mr Blair, the then Prime Minister, to drop an inquiry into the alleged payment of Saudi bribes by BAE Systems to secure a multibillion-pound arms contract. In 2002, two trials costing the SFO £40m failed to convict anyone in connection with an alleged £20m fraud at DIY chain Wickes.
Following the collapse of the Victor Dahdaleh trial, the shadow attorney general, Emily Thornberry, said “The SFO under this government has lurched from shambles to shambles and cannot be relied on to carry out the complex investigations and prosecutions it was created to undertake.” Government insiders have said that the new National Crime Agency, which was launched in October 2013 to tackle serious and organised crime, including economic crime, could take over some of the work of the SFO. This may include work in relation to the Bribery Act.
Although there is yet to be a prosecution against a corporate under the Bribery Act, this could in part be explained by the fact that investigations take a long time and that, because the Bribery Act is not retrospective, a prosecution under the Bribery Act can only be brought in relation to offences that took place since the Bribery Act entered into force.
Cases under the Bribery Act could however be around the corner. The SFO confirmed in December 2013 that it had opened a criminal investigation into allegations of bribery and corruption at Rolls Royce and in November 2013, confirmed that it had opened a criminal investigation into G4S and Serco electronic monitoring contracts. Only time will tell whether these investigations will result in a prosecution and whether that will be under the Bribery Act or older legislation.