Similarly the case confirms that gifts are also in scope – for example the corrupt conduct here included the gift of Rolls-Royce branded watches to officials of a state-owned energy company.
Scope of the investigation
It is clear that this was a large investigation. It involved 229 internal investigation interviews and, as is common in this type of investigation, regular reporting sessions with the UK and US authorities. 250 third party relationships were reviewed with 120 of them coming in for close analysis.
EDiscovery techniques were used heavily too. The complete email accounts of more than 100 current or former employees were made available to the SFO. This and other targeted enquiries led to a digital examination of more than 30 million documents. Last month we wrote about the SFO’s increasing use of digital techniques and big data in investigations (see http://www.corderycompliance.com/bribery-prosecutions-and-big-data/). This case is a clear example of that, especially when combined with Rolls-Royce’s commitment to keeping the data in the jurisdiction and available for further analysis.
Synonyms for bribes
We have talked before in our alerts about the many synonyms use to describe corrupt behaviours. The Statement of Facts shows an awareness on behalf of some employees that their emails could be looked at. One employee for example says:
“I told [the Rolls-Royce employee in Russia] on Monday I do not want to see any of this stuff appearing in an email in future. If he does it again, I’ll bring him back to London so we can give him a face-to-face scrubbing.”
As a result various synonyms were used for bribes including:
- Deferred marketing cost
- Success fee
- Marketing expenses
Anyone currently conducting an investigation would be wise to make sure that these and similar terms are included in initial key word searching. Those involved in the scheme also looked at other ways of communicating including BlackBerry Messenger presumably to try and avoid detection.
Offences under the old and new regime
Given the length of time covered by the corrupt activity this case involved both the pre- and post- Bribery Act 2010 regime. Only offences after 2011 can be charged under the Bribery Act 2010 and so the UK’s former legislation was used for the earlier offences. It shows however that the SFO are prepared to use the new s.7 failure to prevent offence in the Bribery Act 2010 when they can.
DPAs are here to stay
We’ve looked at the DPA system in connection with two other cases ICBC Standard Bank (http://www.corderycompliance.com/uks-first-dpa/) and XYZ (http://www.corderycompliance.com/recent-developments-in-bribery-and-corruption/). Clearly this case is more significant and shows that, whilst unloved by some, DPAs are here to stay.
Lessons to be learned
The case illustrates a number of points including:
- Rumours of the death of the UK Bribery Act 2010 were premature – the Act does have teeth and the case shows the SFO’s intention to play their role in investigating and prosecuting corrupt conduct;
- Companies need to supervise those they do business with properly – this will includes their sales channel. We think this will be a key trend in compliance for 2017 – you can find out more in our video predictions here – http://www.corderycompliance.com/predictions-for-2017-the-rise-of-the-digital-world/
- Management is expected to help stamp out corruption too – if they do not there may be personal consequences;
- Proper policies, procedures and training must be put in place; and
- Companies must properly investigate bribery promptly – this will enable them to secure some resolution without the need for court proceedings if appropriate. Here Rolls-Royce did get some credit for their co-operation even though the case was not self-reported by them because they acted quickly and thoroughly to get to the bottom of what had gone on.
There is background on the DPA regime here – http://www.corderycompliance.com/uks-first-dpa/
There are details of Cordery’s work in this area here http://www.corderycompliance.com/bribery-corruption/ and here http://www.corderycompliance.com/internal-investigations/
We’ve updated this article since 18 January to reflect more recent developments.
For more information please contact Jonathan Armstrong or André Bywater who are lawyers with Cordery in London where their focus is on compliance issues.
|Jonathan Armstrong, Cordery, Lexis House, 30 Farringdon Street, London, EC4A 4HH||André Bywater, Cordery, Lexis House, 30 Farringdon Street, London, EC4A 4HH|
|Office: +44 (0)207 075 1784||Office: +44 (0)207 075 1785|