News & what's on - Written by on Sunday, July 15, 2012 4:56 - 1 Comment

July newsletter: 30% lose out through bribery, SFO targets finance & beefs up, enforcement action in retail & publishing & dawn raid seminar…

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Weather’s nice!  Summer season is upon us, striking a cheery note, the holiday season often unmasks fraud when those involved go on holiday leaving others to uncover it!  Read on for our picks from the last month.

30% say they’ve lost out through bribery

Our one minute survey found that one in five thought the Bribery Act made UK PLC less competitive internationally.  A corresponding one in five said that they thought the Bribery Act made their businesses less likely to enter new markets.

The good news is that the overwhelming majority do not think the Bribery Act has damaged their ability to compete internationally.  The bad news is there are many who say the Bribery Act is bad news for UK PLC in international markets.

Worse, nearly 30% said that their business had lost out as a result of suspected bribery in the last 12 months.

Tip

If you are a victim of bribery then there are civil remedies including:

  • rescission of the contract;
  • refusing to perform on the basis it is an illegal contract, alternatively on the basis it was void for want of authority;
  • a claim against the bribed agent, in damages for fraud; and
  • a claim against the briber for the amount of the bribe.

If you would like to learn more our colleague William Christopher wrote a detailed article about the rights of victims here. If you would like to know more email barry.vitou@pinsentmasons.com and we will put you in contact with William.

SFO focus on the City & new blood herald a tougher approach

The SFO has reopened an investigation into LIBOR.  The New York Times this weekend reporting that the US Department of Justice has identified potential criminal wrongdoing and is reportedly building criminal cases.  The SFO has also opened an investigation into a failed Hedge Fund.

The new Director of the SFO has announced some key new appointments to the SFO.  Notably, His Honour Geoffrey Rivlin QC will be advisor to Mr Green focusing on quality assurance on cases.  The respected judge who presided over some of the most complex criminal fraud trials before his retirement earlier this year will be well placed to vet investigations and prospective prosecutions.

Four other key appointments have been announced, including a new General Counsel.

Tip

David Green CB QC, has wasted no time in implementing some of the changes he trumpeted on his arrival.  The new appointments are significant and reflect the new Director’s intention to deliver on his promise to return to rude health the SFO as a crime fighting agency into Serious Fraud and corruption.

Early indications are that the SFO will be increasingly active.  

We recommend a review of systems and controls to ensure that they are adequate and that lessons learned over the last twelve months are incorporated with policies and procedures reviewed and updated accordingly.  If you would like to talk to someone about this then please contact barry.vitou@pinsentmasons.com

Enforcement in Publishing & Retail

The last month has seen two big cases reach resolution.  Oxford Publishing Limited (OPL) was ordered to pay £1,895,435 in respect of monies received generated through unlawful conduct in Africa by subsidiaries following a Self Report in late 2011.  The World Bank announced that it had debarred Kenyan and Tanzanian subsidiaries in a related enforcement action.

Closer to home three former highly respected senior managers in the retail sector received lengthy prison sentences for their part in substantial corruption in a £40 million per year supermarket procurement contract racket.

The investigation uncovered the payment of £4.9 million in bribes in a scheme which led to Sainsbury’s being overcharged by £8.7 million.  Yes.  £8.7 million.

Tip

The conduct occurred before the entry into force of the Bribery Act.  If it took place today it is likely there would also be an investigation into the corporate conduct of the supplier and a review of its anti-bribery procedures by investigators to determine if the supplier was guilty of failure to prevent bribery.

Retailers and publishers should check their existing anti-bribery measures.  

As well as avoiding criminal liability there are good commercial reasons for businesses to have robust anti-bribery systems.

As the judge remarked in the retail case: “Sainsbury’s was in effect being bribed with its own money”. Often a feature of a bribery scheme is a customer paying for the cost of the bribes with suppliers inflating invoices.

If you would like to learn more about this and learn from the lessons of others please email barry.vitou@pinsentmasons.com.

Dawn Raid Seminar on September 24 2012

The trap is sprung.

Would your receptionist know what to do if investigators appeared at your  offices with a search warrant?

Who would he/she call?  The Directors?  They’ve already been arrested at home.

Join us at our Dawn Raid seminar on September 24 2012

Following the ill fated Vincent Tchenguiz raid the Serious Fraud Office conducted no raids for 12 months.

In contrast the Financial Services Authority increasingly uses dawn raids to gather evidence and HMRC and competition authorities use raids as part of their investigative tool kit.

It is likely that the SFO will ramp up raid activity under the direction of the new Director David Green CB QC.

Raids are a key tool for an investigator and what happens in the so-called ‘golden hour’ of a raid can shape an investigation.

Our team are experts in Dawn Raids and have plenty of experience of guiding clients through the traumatic experience of one.

We will share key tips with you.

The chance of a dawn raid is statistically low.

So is the likelihood that your place of work will burn to the ground.  We still have fire drills.

Join us at our offices at 30 Crown Place London EC2A 4ES at 6pm on 24th September and attend our Dawn Raid presentation.

If you would like to attend please email: barry.vitou@pinsentmasons.com

In the meantime, enjoy the summer weather…

 

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James Richardson
Jul 17, 2012 3:53

“Who’s next”? One of the lessons that I have learned after many years in business is that, when Government investigators of any hue discover issues within a particular industry, they tend to investigate other companies in the sector, on the basis that they are likely to be doing the same thing. When I first worked in Publishing, as a callow youth, the Inland Revenue (as it was then) had just discovered that a particular company was allowing its sales reps to sell their sample books to bookshops, when they were finished with them, and to pocket the proceeds. It goes without saying that no tax or NI was paid on this money, and the amounts concerned were significant. Within 18 months, every major publisher had received a PAYE inspection, and the first question they were asked was “Do your reps sell their samples to bookshops”? It was a nice little earner for the Inland Revenue.

I suspect that we will now see a similar pattern in connection with bribery amongst publishers who operate in some high risk markets, particularly in Central Africa. There are several big name UK companies operating in the area and some strategic withdrawals have recently taken place, particularly on the part of Macmillan, who got stung for £11 million by the SFO last year. My guess is that further investigations are going on, and that more settlements will follow.

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