Bribery & POCA

In the context of the UK Bribery laws, the relevant crime will be the bribe itself. Broadly speaking, any contract obtained directly or indirectly as a result of a bribe will qualify as criminal property. Any property or value derived from that contract will likewise be criminal property. Importantly, this does not mean net profits, it means all revenues, or put another way, the value of the contract.

Turning to POCA. It is broadly defined and interpreted and the courts consider it to be justifiably “draconian”. POCA’s aim is simple: to remove any gain resulting from crime. If the Act errs in any way then it errs on the side of taking too much from offenders. If the ‘criminal lifestyle’ provisions apply the burden on an offender can become extremely difficult. Criminal responsibility under POCA will apply to the members of the Board who have received the information about the contract as well as the organisation itself and perhaps the in-house lawyer.

The prospect of any in-house lawyer and the Directors facing personal criminal liability tends to focus the mind. This is doubly so when considering the penalties which range up to 14 years in prison, with lawyers being shown no mercy by the courts.

A fresh stand alone offence (Section 328 of POCA) with a penalty of 14 years in prison would be committed if someone enters into or becomes concerned in an arrangement which they know or suspect facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another.

For a definition of suspicion, in the case of Da Silva [2006] EWCA Crim1654 it was held that:

“the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statute does not require the suspicion to be ‘clear’ or ‘firmly grounded and targeted on specific facts’ or based on ‘reasonable grounds’.”

In other words it’s a subjective test of what the individuals think.

If your business is in the “regulated sector” then this extremely low threshold is reduced further. Under Section 330 no suspicion is required at all! Instead, it is simply enough that there was sufficient material to provide reasonable grounds for having a suspicion even if no such suspicion was in fact held by the individual.

If your business is in the regulated sector then you must tell the police failing which you will commit an offence of failing to report which carries a penalty of five years in prison.

If your business is in the unregulated sector then, while there is no obligation to tell the police, but the only defence to the underlying money laundering offence in Section 328 requires that you do so. Failing which, a brand new money laundering offence will be committed carrying with it a 14 year prison sentence.

Clarke Kiernan, Bribery solicitors,

2 – 4 Bradford Street, Tonbridge, Kent. TN9 1DU

Phone: 01732360999, Fax : 01732353835, info@clarkekiernan.comMap