Earlier this week three individuals were sentenced at Southwark Crown Court following the first prosecution by the SFO under the Bribery Act 2010. The case hasn't give us a meaningful judicial interpretation of the Bribery Act, but it does show that the SFO is prepared to use the Act and the case also serves as a further example of the risks of investing through a SIPP into an investment that seems too good to be true.
Sustainable AgroEnergy plc (SAE) offered UK investors the opportunity to invest in an unregulated "green biofuel" investment scheme. Investors were misled into believing: that SAE owned land in Cambodia planted with jatropha trees; that an investment into the scheme would produce high returns of 8-25%; and that there was an insurance policy in place to protect investors if the crops failed. However, these claims were not correct, no crops were produced, and SAE paid previous investors with money received from new investors in the manner of a 'ponzi' scheme. Numerous investors lost "life-changing" amounts of money by investing in the scheme, and in total investors lost around £23 million. Three individuals were convicted of fraud-related offences.
There may now be scope for individual investors to consider FOS complaints against any financial advisers who advised them to participate in the scheme. As Robbie noted in respect of previous SFO investigations, FOS need not apply the law in the way a court would and so can uphold a complaint relating to unsuitable UCIS recommendations even though the losses were caused by a third party's unforeseeable fraud.
Two of the individuals convicted, Gary Lloyd West, former Director and Chief Commercial Officer of SAE, and Stuart John Stone of SJ Stone Ltd, a sales agent who was responsible for selling the unregulated investments, were also convicted under the Bribery Act in relation to a further scheme to extract money from SAE group companies. Essentially Mr Stone submitted duplicate invoices from multiple companies he controlled, allowing him to be paid twice for his services to the SAE group. He paid Mr West over £189,000 in bribes in order to induce Mr West to approve these invoices. Mr Stone and Mr West were, respectively, convicted under section one (offences of bribing another person) and section two (offences relating to being bribed) of the Bribery Act.
This is the first significant Bribery Act case but it hardly seems necessary to include bribery offences when prosecuting co-conspirators in relation to complex financial fraud. Those interested in regulation and corporate crime are still waiting to see the SFO bring a case against a company under the controversial section seven (failure of commercial organisations to prevent bribery). Section seven allows a company to be prosecuted if it fails to have adequate procedures in place to prevent active bribery by associated persons. Exactly what the scope of this provision is and how it will be applied is something that many will be keen to see tested in court. We have waited three years since the first disappointing outing for the Bribery Act, and we're still waiting to see the Act truly tested.