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United Kingdom: Phase 2 Report on the Application of the Convention On DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS UNITED KINGDOM: PHASE 2 REPORT ON THE APPLICATION OF THE CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN INTERNATIONAL BUSINESS TRANSACTIONS This report was approved and adopted by the Working Group on Bribery in International Business Transactions on 17 March 2005. TABLE OF CONTENTS A. INTRODUCTION ..............................................................................................................4 1. Nature of the on-site visit ................................................................................................4 2. General observations .......................................................................................................5 a) Observations about system of government and legal system ....................................5 b) Economic factors .......................................................................................................6 c) General observations about the United Kingdom’s implementation of the Convention and 1997 Recommendation..........................................................7 d) Developments since the Phase 1 Examination...........................................................8 (i) Phase 1 and Phase 1 bis Examinations ..................................................................8 (ii) The Draft Corruption Bill ......................................................................................9 (iii) Other Legislative Developments since Phase 1bis ................................................9 (iv) Focus of Report....................................................................................................10 B. PREVENTION AND DETECTION ................................................................................10 1. Awareness and training .................................................................................................10 a) Government awareness and training........................................................................10 (i) Key governmental agencies.................................................................................10 (ii) Investigative, prosecutorial and judicial authorities ............................................11 b) Level of awareness of the business community and civil society............................12 (i) Large companies..................................................................................................12 (ii) Small and medium-sized enterprises (SMEs)......................................................12 (iii) Efforts by the Government to increase standards of corporate governance.........12 (iv) Civil society and Parliamentarians.......................................................................13 2. Detection and reporting of the foreign bribery offence.................................................15 a) General sources........................................................................................................15 (i) Whistleblowers ....................................................................................................15 (ii) Competitors..........................................................................................................16 (iii) Other sources of detection ...................................................................................17 b) Within the public administration .............................................................................17 (i) The public administration ....................................................................................17 (ii) The Tax Administration.......................................................................................18 c) Accounting and auditing..........................................................................................21 (i) Accounting and auditing standards......................................................................21 (ii) The accounting and auditing profession ..............................................................23 d) Money laundering....................................................................................................25 (i) The money laundering offence ............................................................................25 (ii) Money laundering reporting ................................................................................26 C. INVESTIGATION, PROSECUTION AND SANCTIONS..........................................29 1. Investigation..................................................................................................................29 a) Overview of investigative bodies ............................................................................29 (i) The National Criminal Intelligence Service (NCIS)............................................29 2 (ii) Local police forces...............................................................................................29 (iii) The Serious Fraud Office.....................................................................................30 (iv) Other investigative bodies ...................................................................................31 (v) Scotland ...............................................................................................................32 b) Case attribution among investigative bodies ...........................................................32 (i) Case attribution prior to April-July 2004.............................................................32 (ii) Case attribution since April-July 2004. ...............................................................33 (iii) Case attribution and referrals to foreign jurisdictions..........................................38 c) Resources for investigations ....................................................................................40 d) Witnesses and special investigative powers ............................................................43 e) Disclosure to non-investigative agencies.................................................................44 f) Judicial co-operation................................................................................................45 (i) Mutual legal assistance ........................................................................................45 (ii) Extradition ...........................................................................................................47 g) Allegations of Foreign Bribery and Cases under Investigation ...............................48 2. Prosecution....................................................................................................................49 a) Principles of prosecution .........................................................................................49 (i) Prosecutorial authorities ......................................................................................49 (ii) Prosecutor decisions about the appropriateness of prosecution...........................51 (iii) Consent of the Law Officers to prosecution of statutory bribery offences..........53 (iv) The selection of charges and evidentiary issues ..................................................57 b) The Offence of Bribery of Foreign Public Officials................................................58 (i) The Elements of the Offence ...............................................................................58 (ii) The Draft Corruption Bill ....................................................................................60 c) Liability of legal persons .........................................................................................62 (i) Attribution of acts of bribery to the legal person.................................................63 (ii) Rejection of aggregated intent. ............................................................................64 (iii) Lack of prosecutions and convictions of legal persons for domestic or foreign bribery.................................................................................................64 (iv) Foreign subsidiaries. ............................................................................................65 (v) Independent and complementary administrative and civil sanctions for legal persons...................................................................................................65 (vi) Current bribery law reform proposals and legal persons. ....................................66 (vii) New proposed company law legislation. .............................................................66 d) Jurisdiction...............................................................................................................66 (i) Territorial jurisdiction..........................................................................................66 (ii) Nationality jurisdiction ........................................................................................67 e) Crown Dependencies and Overseas Territories.......................................................68 (i) In general .............................................................................................................68 (ii) Crown Dependencies ...........................................................................................68 (ii) Overseas Territories.............................................................................................70 3. Sanctions for the foreign bribery offence
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