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Cross border investigation and prosecution of bribery and corruption offences

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Abstract

The paper will consider the investigation and prosecution of cross border corruption and bribery from a Scottish and EU perspective. It will consider more widely and fully the investigative powers available in such cases including the use of international mutual legal assistance instruments, as well as extradition. Moreover, it will consider the absence of common minimum standards and rules for the admissibility and recovery of evidence, including the oral evidence of witnesses outwith the jurisdiction which exercises criminal jurisdiction and further consider mechanisms to determine jurisdiction to ameliorate the current absence of common rules. The paper will also highlight European experience with the concept of mutual recognition as a cornerstone of judicial cooperation and the wider international instruments in the field of mutual legal assistance in cross border cases.

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Notes

  1. See R v Innospec Ltd (Southwark Crown Court) 26 March 2010: sentencing agreements;R (on the application of Corner House Research) v Director of Serious Fraud Office [2008] UKHL 60: review of the discretion of the Director of the Serious Fraud Office to discontinue a prosecution given the threat made from a foreign national the court finding such an exercise of discretion was lawful weighing the competing interests of the wider public interest of protecting British lives which outweighed the public interest in pursuing a conviction.

  2. 2008/852/JHA of 24.X.2008.

  3. Official Journal C 53, 3.3.2005, p. 1: The Hague Programme in strengthening freedom, security and justice in the European Union.

  4. Article 3.1.

  5. 2003/568/JHA of 22.VII.2003.

  6. Preamble 10.

  7. Article 7.

  8. 27.1.1999.

  9. “Raising Standards and Upholding Integrity: the prevention of Corruption Cm 4759”.

  10. Corruption Draft Legislation Cm 5777.

  11. Joint Committee on the Draft Corruption Bill Session 2002-03 Report and Evidence HL 157, HC 705. See Government response at The Government Reply to the Report from the Joint Committee on the Draft Corruption Bill Session 2002-03 HL 157, HC 705, Cm 6068.

  12. Bribery: Reform of the Prevention of Corruption Acts and SFO powers in cases of bribery of foreign officials.

  13. Reforming Bribery (Report No. 313) on 20 November 2008.

  14. Further Joint Parliamentary scrutiny was undertaken by the Joint Committee on the Draft Bribery Bill, First Report, Session 2008-09, HL115, HC430—I & II. The Government responded to the Joint Committee’s report on 20 November 2009 (Government Response to the conclusions and recommendations of the Joint Committee Report on the Draft Bribery Bill, Cm 7748).

  15. The Bribery Act 2010 (Commencement) Order 2011 Statutory Instrument 1418/2011.

  16. The Bribery Act 2010 Explanatory notes.

  17. Bribery Act 2010 s 1.

  18. Bribery Act 2010 s 2.

  19. Bribery Act 2010 s 6.

  20. Bribery Act 2010 s 7.

  21. Bribery Act 2010 s 11 (on indictment). On summary complaint the penalties are the statutory maximum fine (currently £5000) and 12 months imprisonment respectively in Scotland.

  22. Bribery Act 2010 s 4.

  23. Bribery Act 2010 s 7(5) defines this as an incorporated body in the UK, body corporate, partnership established within the UK for the purposes of carrying out a trade or profession.

  24. Bribery Act 2010 s 7(1). A statutory defence of “adequate procedures designed to prevent” such criminal conduct by persons associated with the organisation is provided: Bribery Act 2010 s 7(2).

  25. Within the EU, a person or commercial entity which is convicted of fraud or money laundering is excluded from participation in public contracts across the EU: Directive 2004/18/EC Article 45.

  26. Annex A.

  27. See the sentencing statement by the High Court of Justiciary in HMA v Weir Group PLC http://www.scotland-judiciary.org.uk/8/695/HMA-v-WEIR-GROUP-PLCI where the company was fined £3 m for breaching trade sanctions in Iraq while also making restitution of almost £14 m through the civil confiscation.

  28. Bribery Act 2010 s 1.

  29. Bribery Act 2010 s 2.

  30. Bribery Act 2010 s 6.

  31. Bribery Act 2010 s 7. Associated person is defined by Bribery Act 2010 s 8 as “a person who performs services on behalf” of the relevant commercial organisation, with the question of whether the person so performs that service to be determined by “reference to all the relevant circumstances and not merely by reference to nature of the relationship between” the person and the commercial organisation.

  32. The FCPA provides exemptions for facilitation payments to be made/made to facilitate or expedite routine government action and for reasonable bona fides business promotion not available under the Bribery Act 2010.

  33. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States Preamble 6.

  34. Ibid Preamble 5. See also Dabas v High Court of Justice, Madrid (Criminal Appeal from Her Majesty’s High Court of Justice) [2007] 2 AC 31 at paragraph 8; Campbell v HM Advocate 2008 JC 265; La Torre v HM Advocate 2008 JC 23.

  35. Inter alia Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the EU of orders freezing property or evidence; Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders; Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. See also the Directive of the European Parliament and the Council on the freezing and confiscation of proceeds of crime in the European Union which seeks to replace these instruments in a global measure and provide for extended confiscation orders which “signifies the ability to confiscate assets which go beyond the direct proceeds of a crime. A criminal conviction may be followed by the (extended) confiscation not only of assets associated with the specific crime, but of additional assets which the court determines are the proceeds of other similar crimes.” It also seeks to introduce a non conviction based asset confiscation scheme.

  36. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (OJ L190, 18 July 2002, p. 1).

  37. Extradition Act 2003.

  38. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) Art 1.1.

  39. Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

  40. Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence Article 2.

  41. Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence Article 5.3. This time period applies in Scotland: Act of Adjournal (Criminal Procedure Rules Amendment No. 5) (Miscellaneous) 2009.

  42. Crime (International Cooperation) Act 2003 ss 20–15.

  43. Crime (International Cooperation) Act 2003 s 22 (1).

  44. Crime (International Cooperation) Act 2003 s 23.

  45. Crime (International Cooperation) Act 2003 s 24.

  46. Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

  47. Article 11.

  48. Para 72–79. See also Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46, and Mantovanelli v France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, pp. 436-37, § 34.

  49. Crime (International Cooperation) Act 2003 s 29.

  50. Crime (International Cooperation) Act 2003 s 31.

  51. Council Framework Decision of 13 June 2002 on joint investigation teams (2002/465/JHA).

  52. Article 9f of the consolidated Council Decision on the strengthening of Eurojust and amending Council Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime.

  53. Report on Joint Investigation Teams (JITs) and Eurojust’s JITs funding 8/2013. In the period from 25 October 2010–22 May 2013 funding of 5,235,932.67 Euros has been made available for supported JITs. In that period 105 JITs were supported.

  54. Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.

  55. Article 3.1 of the Council Decision.

  56. Article 13.6 of the consolidated Council Decision on the strengthening of Eurojust and amending Council Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime.

  57. Initially established by Joint Action 98/428/JHA and amended by Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network.

  58. “Green Paper on Obtaining Evidence in Criminal Matters from One Member State to Another and Securing its Admissibility” Com (2009) 624 Final Brussels, 11 November 2009.

  59. Brussels, 29 April 2010, 9145/10, Interinstitutional file 2010/0817 (COD).

  60. Draft Directive Article 11 envisages no execution in no more than 90 days from the decision on recognition of the EIO.

  61. {SWD(2012) 195 final}; {SWD(2012) 196 final} 11 July 2012.

  62. Draft Directive Article 8.1.

  63. {SWD(2013) 274 final} {SWD(2013) 275 final}.

  64. http://eppo-project.eu/index.php/EU-model-rules/english/eu_model_rule_Model-Rules?url=d7bf5b9a999f5d266c34ece7ddcb5efd.pdf.

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  1. Head of Extradition, International Cooperation Unit, Serious and Organised Crime Division, Crown Office, Edinburgh, UK

    David J. Dickson

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  1. David J. Dickson
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Correspondence to David J. Dickson.

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Dickson, D.J. Cross border investigation and prosecution of bribery and corruption offences. ERA Forum 15, 51–68 (2014). https://doi.org/10.1007/s12027-014-0346-z

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