The UK Bribery Act, like the FCPA, can be applied to accomplices, such as aiders and abettors and co-conspirators in a way that effectively extends the scope of its reach. A violation can occur regardless of whether there is direct involvement of individuals subject to the UK Bribery Act in making an improper inducement. As a result, attorneys, international lawyers, in-house counsel, accountants, consultants and others providing advice need to be fully aware of the possible scope of the UK Bribery Act’s reach.
As a recent example, the Serious Fraud Office recently charged four British citizens of “two offences of conspiracy to corrupt.” It followed a “two-year investigation into allegations of corruption in relation to the tax affairs of Swift Technical Energy Solutions Ltd, a Nigerian subsidiary of the Swift Group of companies.” The approximate value of the bribes paid is £180,000.
All four of the individuals charged were officials of Swift. One was the former Chief Financial Officer, another was the former Tax Manager of Swift, yet another was the former Financial Controller of Swift, and the fourth was the former Area Director for Nigeria of Swift. It is alleged that bribes were paid to agents of the Rivers State Board of Internal Revenue and the Lagos State Board of Internal Revenue, both in Nigeria, to avoid, reduce or delay paying tax on behalf of workers placed by Swift.
Since the payments were made in 2008 and 2009, the anti-bribery law that existed prior to the adoption of the UK Bribery Act presumably serves as the underlying substantive violation that supports the conspiracy charge. But the same agency principles apply with respect to the UK Bribery Act. A violation can occur where there is an agreement with another person to a course of conduct that will necessarily lead to the commission of an offense by one or more parties to the agreement.
Any entity implementing an effective compliance program must exercise care to ensure that communications are not misconstrued or misunderstood. Offhand comments, sarcastic remarks, and other suggestive remarks can often be misunderstood. While enforcement officials are typically careful in determining what was the real intent of the parties involved, no entity, organization or individual wants to be subject to the costs, disruptions, and stress of an investigation prompted by all too casual communications.