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The UK’s Serious Fraud Office Achieves First Convictions Under UK Bribery Act

On December 5, 2014, a London jury found two individuals guilty of violating the Bribery Act 2010 (“the UK Bribery Act” or “UKBA”). This verdict delivered the first convictions of individuals under the UKBA secured by the UK’s Serious Fraud Office (SFO) since the UKBA took effect in 2011.

The investigation and resulting prosecution

The UKBA charges stem from the SFO’s broader investigation of a complex fraudulent investment scheme involving three affiliated companies: Sustainable AgroEnergy plc ('SAE'), an investment company; Sustainable Growth Group ('SGG'), SAE’s parent; and Sustainable Wealth (UK) Investments Ltd ('SWI'), an SGG subsidiary.

According to the SFO, SAE marketed investment products purportedly based on “green biofuel” Jatropha tree plantations in Cambodia to individual UK investors, deliberately misleading investors to believe that SAE owned land in Cambodia, that Jatropha trees were planted on that land, and had insurance against crop failure. In connection with this fraudulent activity, Gary Lloyd West, a former Director and Chief Commercial Officer of SAE, and James Brunel Whale, former Director, Chief Executive Officer and Chairman of SGG, were convicted of conspiracy to commit fraud by misrepresentation and fraudulent trading.

The bribery offenses specifically involve efforts to funnel money out of SAE through SJ Stone Ltd., an agency selling unregulated pension and investment roducts. According to the SFO, Mr. West and Stuart Stone, SJ Stone’s director, conspired to produce false sales invoices enabling Mr Stone to obtain commissions on investors’ funds. Mr. West received bribes for his role in accepting false invoices submitted by Mr. Stone. They used a web of false e-mail addresses, Swiss bank accounts and overseas companies to conceal the bribery.

In connection with this bribery scheme, Mr. West was convicted of accepting bribes in violation of section 2(1) and 2(2) of the UKBA. Mr. Stone was convicted of offering bribes violating sections 1(1) and 1(2) of the UKBA. Both men were also convicted of conspiracy to furnish false information.

The sentences

Bribery was treated as an aggravating feature of the fraud in this case. Gary West was sentenced to a total of 13 years imprisonment, comprising 9 years imprisonment for the fraud offenses and 4 years for the bribery-related offenses. Stuart Stone was sentenced to 6 years imprisonment for the bribery-related offenses. (Mr. Whale was also sentence to 9 years imprisonment for the fraud offenses). In addition, Mr. West and Mr. Whale were disqualified from being directors for 15 years and Stuart Stone for 10 years. Legal proceedings to establish compensation and confiscation orders against the three defendants have also been commenced. A fourth defendant was acquitted of all charges in the case.

Why you should care

Like the U.S. Foreign Corrupt Practices Act (FCPA), the UKBA is a broad anti-bribery statute with significant extraterritorial reach. Unlike the FCPA, the UKBA directly prohibits not only bribery of government officials but also commercial bribery of personnel of wholly private companies. (Although commercial bribery may give rise to violation of the FCPA books and records and internal controls rules, the FCPA antibribery provisions apply only to bribery of government officials.) These convictions reflect the SFO’s increased attention to UKBA enforcement.

Compliance Note

A commercial organization may violate Section 7 of the UKBA if it fails to prevent bribery by its associated persons, unless it can demonstrate that it had “adequate procedures” in place to prevent bribery. The SFO has provided guidance on what such procedures may include, such as procedures circumscribing gifts and entertainment, training, regular risk assessments and third party due diligence. The SFO has also advised that adequate procedures are to be assessed on a case by case basis, and what is “adequate” may depend on a corporate entity’s size, market area, number of employees and other relevant factors. Companies subject to the UKBA are focusing on developing such procedures in order to mitigate risk of liability under this new law.

For further information on the UKBA, the FCPA, and other antibribery compliance matters, please contact the any of O’Melveny attorneys on the right.

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This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. David Foster, an O'Melveny partner licensed to practice law in England & Wales, Greta Lichtenbaum, an O'Melveny partner licensed to practice law in District of Columbia, Richard Grime, an O'Melveny parnter licensed to practice law in District of Columbia, and Nathan Bush, an O'Melveny partner licensed to practice law in District of Columbia, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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