Civil Engineering Reference
In-Depth Information
Although this judgment was based on the law of England and Wales, it would
be foolish to disregard it and the weight it will carry in the Scottish courts. Busi-
nesses should be fully aware that undertaking a self-report in relation to corruption
or bribery does not immediately preclude any criminal prosecution, but where such
proceedings are undertaken, any self-report and co-operation will be considered as
significant mitigating factors to be taken into account. If a business has been involved
in bribery, the self-reporting of such activities can create goodwill and will allow the
business to manage the time frame of the self-report as well as the mechanics of the
internal investigation.
22.6 Prosecution under the Bribery Act
The SFO's first prosecution under the Bribery Act began in September 2013, with the
trial scheduled to commence on 22 September 2014. Charges were brought against
Sustainable ArgoEnergy Plc, a bio-fuel investment company which entered adminis-
tration in March 2012, and four individuals connected to the company (three former
employees and an independent financial adviser). The individuals are alleged to have
committed fraud in relation to the sale and marketing of bio-fuel investment products
and three of the individuals were charged with the offences of giving and receiving a
financial advantage under the Bribery Act. The company itself was not charged with
thestrictliabilitycorporateofenceundertheBriberyAct,however,towhichthere
is only the adequate procedures defence available. When deciding whether to prose-
cute a company, the SFO considers the Code for Crown Prosecutors and accordingly
considered in this case if there was sufficient evidence to provide a realistic prospect
of conviction against the company under this charge, and whether a prosecution was
necessary in the public interest. (In Scotland, the prosecutor is the Crown Office and
Procurator Fiscal Service (COPFS) and they consider the COPFS Prosecution Code.)
It is possible that since Sustainable ArgoEnergy Plc had entered administration, the
SFO considered prosecution not to be in the public interest. We are therefore still
awaiting much needed clarity by way of guidance from court decisions under the
Bribery Act. However, with the SFO stating in September 2013 that they have eight
cases currently under investigation and David Green, head of the SFO, further stating
(in the keynote speech at the 31st Cambridge International Symposium on Economic
Crime, on 2 September 2013) that 'If the public interest requires more corporate pros-
ecutions,thensuchachangeishighonmywishlist',itseemsprobablewewillreceive
this clarity soon.
22.7 Construction industry risk profile
22.7.1 Introduction
The unique nature and operation of the construction sector mean that it is more
exposed to corruption risks than other sectors. Indeed, 49% of respondents to
