International - Written by Barry & Richard on Tuesday, January 3, 2012 3:27 - 1 Comment
The long arm of the law may be longer than you think…
Europe and the US are not a safe-haven for Bribery Act suspects …
The Bribery Act, 2010 has a strongly international dimension catching companies which carry on part of their business in the UK. We have written about this here before on various occasions.
A knock-on effect of this is that those against whom Bribery Act prosecutions are pursued may well be non-UK nationals (provided they meet the close connection test under the Bribery Act) or nationals who are abroad when a warrant for their arrest is issued.
The question is ‘do a Bribery Act suspect’s travel plans make a difference on the issue of whether he faces a UK jury in the fullness of time?’
Bribery Act suspect enjoying some time in mainland Europe?
You may be back before you know it …
The Extradition Act, 2003 made the European Arrest Warrant (EAW) a part of UK law. The EAW creates a system of mutual legal assistance between the institutions enforcing criminal justice in all EU member states. It allows the judiciary in these countries to affect requests for the extradition of those suspected, or convicted, of criminal offences in the requesting state.
It abrogates the need for executive intervention in the extradition process, which in turn speeds the whole procedure up; the average time to provisionally execute an EAW is 43 days. Part 3 of the Act deals with the UK’s ability to seek extradition of those suspected or convicted of crimes under its own law, from other member states.
This can be done if there are “reasonable grounds for believing a person is at large, having committed an extradition offence”. An extradition offence either occurs in the UK or is an extra-territorial offence punishable under UK law. If the extradited person is suspected of an offence then it must attract a sentence of twelve months or more, and if he has already been sentenced then that sentence must exceed four months.
Unsurprisingly, offences under the Bribery Act fall into the requisite, EAW-applicable category. The EAW is a quick and effective means of ensuring that those who are suspected of having committed offences under the Bribery Act face proceedings in UK courts on these charges.
Your American trip might not be as long as you planned either … UK nationals have infamously been extradited to the US to face charges under the US Foreign and Corrupt Practices Act (FCPA).
Jeffrey Tesler, the Tottenham based solicitor who pleaded guilty to acting as a middleman in bribery concerning Nigerian officials, was extradited from the UK to the US under the provisions of Part 2 of the Extradition Act, 2003.
The popular media conception is that an ‘US Jeffrey Tesler’, happily ensconced in his American home-town, may be able to avoid extradition to the UK to face charges under the Bribery Act. The recent Home Office ‘Review of the United Kingdom’s Extradition Arrangements’, presented to the Home Secretary on 30th September 2011 reveals however, that this view is in fact a misconception.
The perceived ‘lack of reciprocity’ in US/UK extradition arrangement arises from the different tests extradition requests from the two nations have to meet. If the UK makes an extradition request to the US it must satisfy the US authorities that the ‘probable cause’ test has been met.
If the US makes an extradition request to the UK it must satisfy the UK authorities that the ‘reasonable suspicion’ test has been met. The popular misconception that the ‘probable cause’ test is more stringent than its UK equivalent is dispelled by the recent Review; both tests equate to the domestic standard for the issue of an arrest warrant, and the difference between them is thus largely a matter of semantics:
“7.42: In our opinion there is no significant difference between the probable cause test and the reasonable suspicion test.
7.43: We believe that any difference between the two tests is semantic rather than substantive, and the challenge to those who suggest that the tests are in some way different is to articulate precisely what that difference is and how the difference would apply in any particular case”
With the popular misconception dispelled, it is more than possible that a ‘US Jeffrey Tesler’ could find himself on a plane to the UK to face Bribery Act charges … if he wasn’t caught under the FCPA first.
Zoe Jacob Pupil, 6 King’s Bench Walk