When considering the UK Bribery Act, it must always be kept in mind that no statute of limitations is applicable to indictable offenses. As a result, a basis exists in the United Kingdom to bring charges many years after the fact. This may include situations where charges are brought for conduct occurring prior to the effective date of the UK Bribery. One such case involves the charges brought against Smith & Ouzman Limited.
The charges related to activities that took place prior to the adoption of the UK Bribery Act in Kenya, Ghana, Mauritania, and Somaliland by a UK company and four individuals prior to the adoption of the UK Bribery Act. As a result, the law that existed prior to the adoption of UK Bribery Act was applied. As is evident from the five-count Indictment and Opening Note in R v. Smith, Case No. T20137605, Southwark Crown Court (Sept. 30, 2014) (U.K.), the legal basis for the charges brought by the Serious Fraud Office (SFO) was section 1(1) of the Prevention Corruption Act 1906 as amended over time.
Those charges ultimately led to the conviction of Smith & Ouzman as well as two of the four individuals. Strict liability under the section 1 of the UK Bribery Act could not have been applied. It would be the equivalent of section 1(1) of the Prevention Corruption 1906 since section 1 of the UK Bribery Act applies to public and private bribery and requires corrupt intent.
Nor could the defense of adequate procedures under section 7 of the UK Bribery Act be applied by Smith & Ouzman. Instead a much higher standard of proof under the “identification theory” had to be applied with respect to proving the culpability of Smith & Ouzman, a legal entity. The identification theory is premised on individuals “directing the mind and will of the company.”1 Nonetheless, the SFO was able to secure a conviction of Smith & Ouzman as well as two of the four individuals charged on three of the five counts.2
1Tesco Supermarkets Ltd. v. Nattrass,  AC 153  (on appeal from Eng.) (U.K.).
2Serious Fraud Office, Press Release, Convicted printing company sentenced and ordered to pay £2.2 million (Jan. 8, 2016).