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ANTI-CORRUPTION ENFORCEMENT
UNITED KINGDOM Per TI ... In the period 2018-2021, the United Kingdom opened 19 investigations, commenced 10 cases and concluded 13 cases with sanctions. Original article: Peter Burgess COMMENTARY Peter Burgess | ||
UNITED KINGDOM
Moderate enforcement
3.4% of global exports
Investigations and cases ... In the period 2018-2021, the United Kingdom opened 19 investigations, commenced 10 cases and concluded 13 cases with sanctions.
TRANSPARENCY INTERNATIONAL ... page 86
Weaknesses in legal framework and enforcement system
Two of the main weaknesses in the legal framework
are a lack of public registries of beneficial ownership
of companies in the Overseas Territories and Crown
Dependencies573 and a longstanding issue regarding
corporate liability in the UK, which inhibits the
successful prosecution of large multinationals for
substantive bribery offences. Key enforcement
system weaknesses include underfunding in the
court system and law enforcement agencies, and a
lack of public awareness-raising.
Recent developments
In June 2022, the Law Commission published a
series of options for ministers to consider on reform
of the UK’s corporate criminal liability regime.574 If
implemented, some of the proposals could help
with the enforcement of foreign bribery laws against
large, complex multinationals.
In May 2022, the government introduced a
Procurement Bill (the Bill) before Parliament. The Bill
stipulates that any convictions for foreign bribery
(under Section 1, 2 or 6 of the Bribery Act 2010) are
mandatory grounds for debarment of suppliers,575
but this does not apply in the case of deferred
prosecution agreements (DPAs). As introduced to
Parliament, the Bill does not include Section 7 of the
Bribery Act (“failure to prevent”) as mandatory
grounds for exclusion even though there is a
provision to exclude suppliers for a failure to
prevent tax evasion. The Bill is unlikely to come into
force until 2023 at the earliest.
In March 2022, the Economic Crime (Transparency
and Enforcement) Act 2022 received Royal Assent.
The new law establishes beneficial ownership
registers for UK property and enhances the
unexplained wealth order regime in favour of the
authorities.576 The measures may also help with the
identification and pursuit of foreign bribery cases.
Commencement of the property register is due later
in 2022.
In October 2021, the OECD WGB welcomed
amendments to the Memorandum of
Understanding (MoU) among UK law enforcement
authorities to make reference to Article 5 of the
OECD Anti-Bribery Convention, as the WGB had
previously recommended.577 However, the WGB
observed that the change does not fully reflect the
scope of its recommendation, and therefore only
considered it to be ‘‘partially implemented’’.578
Transparency of enforcement information
The UK has numerous bodies involved in foreign
bribery enforcement and justice but no centralised
mechanism for collecting and reporting economic
crime enforcement data and no centralised
repository of judgements and other case outcomes
in economic crime cases. Consequently, it can be
work-intensive to access the information.
The Serious Fraud Office (SFO), which is the principal
body responsible for investigating and prosecuting
complex bribery cases in England and Wales,
routinely publishes information on investigations,
forthcoming court cases and concluded cases on its
website579 and in its annual reports.580 The Crown
Prosecution Services (CPS)581 and the Crown Office
and Procurator Fiscal Service (in Scotland)582 bring
forward prosecutions based on investigations by the
National Crime Agency (NCA), Police Scotland, local
police or other government departments, but there
is no central, public source of information about
investigations underway.
There is also no central source for information
relating to court cases for England, Wales and
Northern Ireland, with court judgements maintained
largely by an independent charity, the British and
Irish Legal Information Institute (BAILII).583 The
Crown Office and Procurator Fiscal Service
maintains information about the conclusion of
bribery cases on its website.584
Court decisions are published, including those
authorising deferred prosecution agreements
(DPAs) between prosecutors and a defendant.
However, there is no consistent and comprehensive
reporting of court sentencing remarks and
judgements in economic crime cases, including
foreign bribery ones.
Victims’ compensation
UK sentencing guidelines in foreign bribery cases,
including for corporate offenders in fraud, bribery
and money laundering cases, should apply when
determining compensation for victims. These
include consideration of any loss or injury to victims,
the offenders’ ability to pay and any aggravating
factors, including the intent of the offender. Reasons
should be given if a compensation order is not
made.585
The SFO, CPS and NCA are all signatories to a
statement of general principles for compensating
victims (including affected states, organisations and
individuals) in foreign bribery cases to ensure they
are able to benefit from asset recovery proceedings
and compensation orders made in England and
Wales,586 but the general principles are not
enshrined in law. The conditions imposed under a
DPA can include, among other things, compensation
to the victims of the alleged offence and
disgorgement of profits.587
Application of the general principles varies
depending on the case. For example, none of the
large fines for Airbus were used to compensate any
victims in the countries where the bribery took
place, a concern that Transparency International Sri
Lanka raised directly with the SFO regarding the lack
of appropriate compensation for victims in the
country.588 The reasons cited for the failure were the
inability to easily quantify the loss arising from the
criminal conduct; the lack of evidence that any of
the products or services sold by Airbus to customers
were defective or unwanted, so as to justify a legal
claim; and the fact that the DPA does not prevent
any victims from claiming compensation.589
A July 2021 DPA that was agreed between the SFO
and Amec Foster Wheeler included a term that
£210,610 (US$289,530) of the financial penalty was
ordered as payable in compensation to victims in
Nigeria.590 The compensation constitutes 0.2 per
cent of the total financial penalty for the UK DPA
(which amounted to £103 million (US$141 million) in
penalties and costs as part of a US$177 million
global settlement with the UK, US and Brazilian
authorities).591 This is the sum that the SFO states
was reached on the basis of the specific and
quantifiable loss to the people of Nigeria identified
in the investigation.
Recommendations
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