Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
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Results: 4 Answers
Anti-Corruption & Bribery
1.
Legal and enforcement framework
1.1
Which legislative and regulatory provisions govern anti-corruption in your jurisdiction, from a regulatory (preventive) and enforcement (criminal) perspective?
 
UK
Conduct which took place before 1 July 2011 can be subject to:

  • common law offences of bribery and accepting a bribe;
  • the Public Bodies Corrupt Practices Act 1889;
  • the Prevention of Corruption Acts 1906 and 1916; and
  • the Anti-Terrorism Crime and Security Act 2001.

The Bribery Act 2010 is now the main legislation in the United Kingdom that governs bribery and corruption. It came into effect on 1 July 2011 and covers all companies with a UK connection. They can be prosecuted under the act in the United Kingdom for bribery committed anywhere in the world by staff, intermediaries, third parties or trading partners acting on their behalf. Individuals can also be prosecuted.

Under Sections 1 and 2 of the act, it is an offence to promise, offer or give a bribe or to request, agree to receive or accept a bribe to ensure the improper performance of a relevant function or activity.

Under Section 6 of the act, it is an offence to promise, offer or give a bribe to a foreign public official to influence him or her and obtain or retain business or a business advantage.

Under Section 7, which applies to companies only, a corporate is guilty of an offence if any of the three aforementioned offences are committed by someone acting on the corporate’s behalf. The only defence to this charge of failure to prevent bribery is that the corporate had ‘adequate procedures’ in place to prevent bribery.

Penalties under the act are a maximum of 10 years’ imprisonment and/or an unlimited fine for individuals. Corporates face an unlimited fine and can be barred from tendering for public contracts. For the purposes of this Q&A, we will be referring to the new Bribery Act unless otherwise stated.

For more information about this answer please contact: Azizur Rahman from Rahman Ravelli Solicitors
1.2
Which bilateral and multilateral instruments on anti-corruption have effect in your jurisdiction?
 
UK
The following conventions have been signed and, unless otherwise stated, ratified by the United Kingdom:

  • the United Nations Convention against Corruption (signed on 9 December 2003 and ratified on 9 February 2006);
  • the United Nations Convention against Transnational Organised Crime (signed on 14 December 2000 and ratified on 9 February 2006);
  • the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (signed on 17 December 1997 and ratified on 14 December 1998);
  • the Council of Europe Criminal Law Convention on Corruption (ETS 173) (signed on 27 January 1999 and ratified on 9 December 2003). Implementation of this convention is monitored by the Group of States against Corruption;
  • the Additional Protocol to the Criminal Law Convention on Corruption (ETS 191) (signed on 15 May 2003 and ratified on 9 December 2003);
  • the Council of Europe Civil Law Convention on Corruption (ETS 174) (signed on 8 June 2000 but not yet ratified);
  • the Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union (signed on 26 May 1997 and notified on 11 October 1999); and
  • the Convention on the Protection of the European Communities Financial Interests and Protocols (signed on 26 July 1995 and entered into force on 17 October 2002).

The United Kingdom also signed the Agreement for the Establishment of the International Anti-Corruption Academy as an international organisation on 2 September 2010, but this agreement has not yet been ratified.

For more information about this answer please contact: Azizur Rahman from Rahman Ravelli Solicitors
1.3
Are there accessible directives or other guidance from enforcement authorities in your jurisdiction?
 
UK
The following have been published:

  • the Bribery Act 2010 Guidance by the Ministry of Justice;
  • Joint Guidance for Prosecutors and Joint Guidance on Corporate Prosecutions by the director of public prosecutions (DPP) and the director of the Serious Fraud Office (SFO);
  • the United Kingdom Anti-Corruption Strategy 2017–2022;
  • the BBA’s Anti-Bribery and Corruption Guidance May 2014; and
  • the OECD and International Bar Association report proposing global conduct guidelines for lawyers working on commercial structures, published 31 May 2019.

In April 2019, SFO Director Lisa Osofsky stated that she was set to issue guidance for corporates about what they can expect from her agency if they self-report wrongdoing.

This guidance was published in August 2019. It states that cooperation will be a relevant consideration when the SFO decides whether to charge, and that ‘cooperation’ means providing assistance that goes above and beyond what the law requires. Identifying suspected wrongdoing and the people responsible, reporting this to the SFO within a reasonable time and preserving available evidence are cited as examples of cooperation – although the guidance says that even full, robust cooperation does not guarantee any particular outcome.

Controversially, the guidance states that where a company claims that documentation is privileged – and therefore unavailable to the SFO – this claim must be established by independent legal counsel.

For more information about this answer please contact: Azizur Rahman from Rahman Ravelli Solicitors
1.4
Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?
 
UK
The Bribery Act can be enforced by agencies including the SFO, the National Crime Agency (NCA), the Financial Conduct Authority (FCA), City of London Police and regional police forces. The SFO director can authorise a bribery prosecution. Any other agency needs the consent of the DPP.

The SFO is the primary agency in England and Wales for investigating and prosecuting corruption cases in these countries and abroad. It has a range of unique powers under Section 2 of the Criminal Justice Act. Under Section 2, the SFO can compel any individual or organisation to provide it with information or documents that it believes are relevant to its investigation. The SFO has also told lawyers that they are not guaranteed a right to accompany a client that is compelled to go in for interview under Section 2. While it is commonly the case that a lawyer can attend a Section 2 interview, a lawyer intending to attend a Section 2 interview with a client must argue why he or she should be allowed to do so, and may even have to agree to certain restrictions during the interview. Pre-interview materials are often provided which can be reviewed with an instructed lawyer prior to the interview and the interview cannot be used against the person in future criminal proceedings, unless it is for enforcement of Section 2. Following the High Court’s decision in KBR v SFO (2018), the powers of Section 2 notices extend beyond UK borders (see question 2.8).

Although the SFO encourages self-reporting of involvement in bribery and corruption, it has emphasised that this will not necessarily prevent a prosecution being brought – and it will not accept the company’s report of wrongdoing at face value.

The SFO also now has deferred prosecution agreements (DPAs) at its disposal. Introduced under Schedule 17 of the Crime and Courts Act 2013, a DPA is an agreement reached (under the supervision of a judge) between a prosecutor and an organisation which could be prosecuted. It allows a prosecution to be suspended for a set period, provided that the organisation agrees to meet certain specified conditions and admits the criminal behaviour. If the organisation meets the conditions, the prosecution will not go ahead – but it will be prosecuted if it fails to meet those conditions.

The United Kingdom’s anti-money laundering regime requires reporting to the NCA and applies very strictly to the regulated sector. Any suspicion of a bribery offence may need to be reported to the NCA. The NCA’s International Corruption Unit was set up specifically to take reports of bribery and corruption. Its key role is to investigate money laundering in the United Kingdom resulting from corruption of high-ranking officials overseas, bribery involving UK-based companies or nationals which has an international element and cross-border bribery where there is a link to the United Kingdom. It also traces and recovers the proceeds of international corruption.

The NCA is a member of the International Anti-Corruption Coordination Centre, which brings together specialist law enforcement officers from agencies around the world to tackle corruption. It is also involved with the International Foreign Bribery Taskforce, which sees bribery investigators from the United Kingdom, Australia, Canada and the United States share expertise.

The other agencies responsible for enforcing the law in relation to bribery are:

  • the Crown Prosecution Service (CPS), which prosecutes corruption cases in England, Wales and overseas;
  • the FCA, which regulates the UK financial services industry, using powers conferred on it by the Financial Services and Markets Act 2000. It has imposed large fines on firms for breach of its principles where bribery and corruption have taken place or where a firm’s systems and controls have been inadequate to deal with the threat of corruption; and
  • the National Economic Crime Centre. This began operating on 31 October 2018. It coordinates the United Kingdom’s national response to economic crime by working with the various prosecuting bodies.
For more information about this answer please contact: Azizur Rahman from Rahman Ravelli Solicitors
1.5
What are the statistics regarding past and ongoing anti-corruption procedures in your jurisdiction?
 
UK
The United Kingdom is the 11th least corrupt nation out of 175 countries, according to the 2018 Corruption Perceptions Index reported by Transparency International. The index scores on a scale of zero (highly corrupt) to 100 (very clean). The United Kingdom scored 80 points out of 100 on the 2018 Corruption Perceptions Index.

Many bribery-related cases are still being prosecuted under earlier laws. Indeed, between 2014 and the second quarter of 2018, the CPS launched 107 proceedings under the Prevention of Corruption Act 1906, compared with around 42 for all offences under the Bribery Act 2010.

According to the House of Lords Select Committee on the Bribery Act 2010, 2011 to 2017 saw 22 prosecutions under Section 1 of the Bribery Act (offering or giving a bribe), which led to 14 convictions. These resulted in 10 custodial sentences, three suspended sentences and one community sentence. For the same period for the Section 2 offence of requesting or accepting a bribe, there were 14 convictions, leading to seven custodial sentences, five suspended sentences and one community sentence.

Most of the earliest cases brought under the Bribery Act were relatively minor, involving bribes of less than £10,000. It appears that more large-scale corporate cases are now being brought, albeit not many.

The SFO’s first successful Bribery Act 2010 conviction of individuals came in 2014, in relation to the prosecution of two men involved in a £23 million fraud concerning Sustainable AgroEnergy’s (SAE) biofuel investment products. SAE’s former director and chief commercial officer received bribes in exchange for false invoices.

In 2015 construction company Sweett Group PLC was the first to be convicted under the Section 7 Bribery Act offence of failing to prevent bribery. It was fined £2.25 million after it admitted failing to prevent an act of bribery intended to secure and retain a contract with an insurance company in the United Arab Emirates.

The first contested Section 7 case was concluded in 2018 after Skansen Interiors reported bribery by two employees to the police and was itself charged with the offence. Skansen argued that it had adequate procedures in place to prevent bribery, but a jury found this not to be the case. The company had ceased trading in 2014 and was given an absolute discharge.

The SFO’s first conviction after trial of a corporate for offences involving bribery of foreign public officials came in 2014, leading to printing company Smith and Ouzman being ordered to pay £2.2 million for its corrupt payments to officials in Kenya and Mauritania.

While the number of prosecutions has been relatively low under the 2010 Act, it should also be noted that the DPAs concluded with Standard Bank, Sarclad and Rolls-Royce were all bribery related.

For more information about this answer please contact: Azizur Rahman from Rahman Ravelli Solicitors
1.6
What are the shortcomings identified in your jurisdiction’s anti-corruption legislation (including recommendations of the Organisation for Economic Co-operation and Development, where applicable)?
 
UK
The issue of corporate as opposed to individual liability in relation to the prosecution of bribery has led to criticism of how allegations are investigated and prosecuted. A company can enter into a DPA with the SFO which allows it to escape prosecution, but offers no such protection for the individuals within the company. The individuals are literally left to defend themselves. This problem may be due to the difficulty in identifying the controlling mind of the company and how this relates to the acts or omissions of those individuals (for further information on DPAs, see question 6).

However, the DPA alternative to prosecution of corporates can lead to the contradictory situation of a company admitting wrongdoing and avoiding prosecution and the authorities then failing to convict the individuals who allegedly committed the wrongdoing. The situation may also arise – as with the Rolls-Royce bribery case – where a DPA is agreed and the company accepts that wrongdoing was committed, but the investigation into individuals is then dropped. This may be because of the fact that it is possible for a DPA to be concluded without a full code test (which prosecutors apply when deciding whether to charge) – that is, where the company accepts the wrongdoing without the prosecuting agency having identified material to satisfy the evidential burden of the test.

In March 2019 the House of Lords Select Committee on the Bribery Act 2010 found that the act is considered an international gold standard for anti-bribery and corruption legislation. However, the committee also stated the following:

  • The government must improve the advice given to small and medium-sized companies on how to comply with the act when exporting goods and services.
  • There is a lack of cooperation between the CPS, SFO, NCA and other agencies, which must be addressed.
  • The CPS and SFO should make speeding up bribery prosecutions a priority.

In its 2012 report, the OECD Bribery Working Group criticised the United Kingdom for what it said was a lack of transparency surrounding decisions to resolve a number of bribery investigations via a civil settlement rather than by prosecution.

For more information about this answer please contact: Azizur Rahman from Rahman Ravelli Solicitors