Category: Anti-corruption

Anti-corruption

UK Government responds to International Development Committee’s Fourth Report 2016/2017

In October 2016, the International Development Committee put forward 13 recommendations for the improvement of the UK Government efforts to tackle overseas corruption. Last month the UK Government published its response.

The Government agreed with seven recommendations:

  • assess the extent of money laundered through the UK and continue to lobbying the UK’s Overseas Territories and Crown Dependencies to apply the same level of transparency and accountability;
  • develop a cross-government Anti-Corruption Strategy;
  • continue prioritisation of anti-corruption efforts during Brexit negotiations and afterwards;
  • apply research into the effectiveness of different anti-corruption methods;
  • include foreign parliaments in DFID’s anti-corruption country strategies;
  • work with foreign governments to increase protection for whistleblowers; and
  • DFID to monitor progress of anti-corruption programmes.

The Government partially agreed with the following four recommendations:

  • reappoint the anti-corruption “Champion”;
  • further work on the inclusion of developing countries in discussions and decisions on international tax matters;
  • develop DFID rolling strategies with a 10 year horizon; and
  • DFID’s publication of anti-corruption country strategies.

The Government disagreed with the following proposals:

  • lobby the UK’s Overseas Territories and Crown Dependencies to create public beneficial ownership registers; and
  • publish country by country reporting of profits and payments to governments by multinationals.

The two areas where the Government declined to follow the Committee’s recommendations appear to reflect a concern that although the UK should be seen as a leader in the fight against anti-corruption, it should not go too far ahead. The Government emphasises that the UK’s Overseas Territories and Crown Dependencies already go further than other jurisdictions as they allow law enforcement to access the information. In respect of the publication of profits and payments to governments by multinationals, the Government expressly states that this should be a multilateral effort.

Anti-corruption

Home Affairs Select Committee concludes UK needs to do more to address money laundering and corruption

The House of Commons Home Affairs Committee has published a report entitled ‘Proceeds of Crime’ in which it is highly critical of the efforts being made and systems in place in the UK to prevent money laundering and to recover the proceeds of crime. Chair to the Committee, Rt Hon Keith Vaz MP, was keen to stress on the UK Parliament Website that: “At least a hundred billion pounds, equivalent to the GDP of Ukraine, is being laundered through the UK every year. The Proceeds of Crime legislation has failed to achieve its purpose. London is a centre for money laundering, and its standing as a global financial centre is dependent on proactively and effectively tackling money laundering[1]. The report lists various statistics to demonstrate how ineffective current efforts are especially against criminals increasingly sophisticated at concealing the proceeds of crime.

The Committee, who consulted various stakeholders and experts in the course of its inquiry, highlighted the inadequacy of the key tool for detecting suspicious financial activity across the financial services sector and connected industries as an ongoing and serious issue. The report concluded that the ‘ELMER’ database (which captures Suspicious Activity Reports (SARs) on behalf of the National Crime Agency (NCA)) is overloaded, rendering it “completely ineffective”. This is perhaps unsurprising if the NCA report to the Committee, that ELMER was currently processing 381,882 SARs, despite having been designed originally to cope with just 20,000, is correct.

However, the Committee concluded that more is needed than simply an upgrade of the SAR processing database highlighting the regret expressed by many of those providing evidence that the recovery of criminal assets was often only an afterthought after a conviction. The report also highlighted an inconsistent and seemingly unenthusiastic approach to the recovery of the proceeds of crime at both prosecutor and court level and confirmed its agreement with the National Audit Office that the Asset Recovery Incentivisation Scheme (ARIS) was flawed and unfit for purpose.

In addition, as Mr Vaz emphasised: “Investment in London properties is a major route which tarnishes the image of the capital. Supervision of the property market is totally inadequate, and poor enforcement has laid out a welcome mat for launderers and organised criminals[2] and yet, of the 1.2 million property transactions in the UK last year, only 355 suspicious activity reports were actually generated. According to Transparency International, who were themselves consulted in the preparation of the report, 36,342 properties in London are held by ‘offshore’ companies and that, while in many cases there may be nothing untoward in that, 75% of properties owned by people under criminal investigation for corruption are held through secret offshore companies[3].

The Committee called for much tougher oversight of the market, including stronger supervision of agents, buyers and sellers and for full responsibility for tackling money laundering, which is currently fragmented between different authorities, to be handed to the NCA. The Committee also proposed various other specific measures to be taken to address the issues it highlighted in general including:

  • The freezing of assets simultaneously with criminals becoming aware of the investigation against them for the first time – often at the time of arrest.
  • Initial and ongoing financial investigative training to be given to police officers.
  • An overhaul of ARIS.
  • The replacement of ELMER with a robust system for handling SARs by 31 December 2016.
  • The creation of a specialist ‘confiscation court’ designed to hear complex cases featuring cross-border financial transactions, use of corporate vehicles or very high value proceeds to combat the current lack of interest and expertise in confiscation orders among prosecutors and judges.

The report comes just a couple of months after the Government published its new anti-money laundering Action Plan[4] and the new Prime Minister, then Home Secretary, emphasised the importance of sending a clear message that such behaviour will not be tolerated and announced that the Home Office was reviewing its anti-money laundering rules. She also announced that it was considering a number of new policies, including “unexplained wealth orders (UWO), requiring those suspected of money laundering to declare their wealth”, as well as tougher powers for the NCA[5]. However, the report also comes at a time of distinct uncertainty following the Brexit referendum which, with a weakened pound and cuts to law enforcement budgets that have been reported to have increased the attractiveness of London to those who wish to launder their money through property, should make the Government’s response to the report of even greater significance.

 

[1] http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2015/proceeds-of-crime-report-published-16-17/

[2] http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2015/proceeds-of-crime-report-published-16-17/

[3] http://www.transparency.org.uk/publications/corruption-on-your-doorstep/

[4] https://www.gov.uk/government/publications/action-plan-for-anti-money-laundering-and-counter-terrorist-finance

[5] https://www.gov.uk/government/news/biggest-reforms-to-money-laundering-regime-in-over-a-decade

Anti-corruptionBriberyWhite collar crime

UK’s Serious Fraud Office secures second deferred prosecution agreement – this time with the UK Subsidiary of US Corporate

Lord Justice Leveson has approved the Serious Fraud Office’s (“SFO’s”) second application for a Deferred Prosecution Agreement (“DPA”). The Agreement is with a company which cannot be named because of continuing related legal proceedings. The first DPA was with ICBC Standard Bank in December 2015. Further agreements under the DPA system have been keenly awaited, and this second DPA sends a strong message to UK Plc and international companies that the DPA model is here to stay.

The DPA involved a small to medium sized (“SME”) UK company and allegations of overseas bribery in a number of countries with bribes paid through third parties in Asia. The agreement encompasses financial orders totalling £6.5m, and continuing co-operation by way of an annual report to the SFO on third party intermediary transactions, and the company’s anti-bribery controls, policies and procedures. Charges laid under both pre Bribery Act and Bribery Act law have been suspended and will be discontinued within 5 years as long as the company is compliant with the DPA.

The judgment is interesting to companies from all sectors, including financial services, in a number of respects:

  • The SME company is of limited means and the question of sentencing and the potential consequence of a company insolvency is addressed. SFO Director David Green has stated, “This case raised the issue about how the interests of justice are served in circumstances where the company accused of criminality has limited financial means with which to fulfil the terms of a DPA but demonstrates exemplary co-operation.” The fine was lower than the recommended guideline amount because of the risk of insolvency.
  • The bribery was discovered as a result of the SME’s US parent company implementing a global compliance programme.
  • The fine will be paid by the UK company but £2m of the disgorgement payment will be met by the US parent which is not accused of any misconduct, as a repayment of a significant proportion of the dividends that it received from the SME over the indictment period.
  • The judgment gives useful commentary on the meaning of co-operation, including the company providing comprehensive information on the initial self-report, and oral summaries of first accounts of interviewees. It also facilitated interviews, and responded promptly and completely to SFO requests for information.

UK and international corporates will follow this decision with interest. The entity and the amount involved may be modest, in this case but the guidance on several important DPA issues given by Lord Justice Leveson is crucial to any company which has any jurisdictional nexus with the UK, discovers it is affected by criminal conduct, and considers availing itself of the UK self-reporting regime.

Louise Delahunty, a partner in our White Collar Crime & Regulatory Defense practice, can provide more information if you need it.

Anti-corruption

CooleyAR’s summer holiday

The team will be taking August to recuperate after a furious few months blogging and will return in the Autumn.

However, before we pack our bags it is worth reflecting on David Cameron’s recent speech in Singapore where he addressed the threat posed by corruption worldwide. We were particularly interested in his comments on how the UK should respond to corrupt foreign companies laundering money through the UK – a topic we touched on last week. Mr Cameron announced that the Land Registry has been instructed to public data on foreign companies holding land and a consultation is taking place on expanding beneficial ownership rules to foreign companies who own property or contract with the UK Government. These are very positive steps and we will report back once these various consultations are released.

The speech is available in full here, and the relevant passage is below:

“Now with £122 billion of property in England and Wales owned by offshore companies we know that some high-value properties – particularly in London – are being bought by people overseas through anonymous shell companies, some of them with plundered or laundered cash. Just last week, there were allegations of links between a former Kazakh secret police chief and a London property portfolio worth nearly £150 million.

I’m determined that the UK must not become a safe haven for corrupt money from around the world. We need to stop corrupt officials or organised criminals using anonymous shell companies to invest their ill-gotten gains in London property, without being tracked down.

People like convicted Nigerian fraudster James Ibori, who owned property in St John’s Wood, Hampstead, Regent’s Park, Dorset all paid for with money stolen from some of the world’s poorest people. So we have got to find ways to make property ownership by foreign companies much more transparent.

There may be a number of ways we can do this, for example extending what we currently ask of UK companies to foreign companies too. And we will consult on the best way forward.

But as a first step, I have asked the Land Registry to publish this autumn data on which foreign companies own which land and property titles in England and Wales. This will apply to around 100,000 titles held on the Land Register and will show for the first time the full set of titles owned by foreign companies.

And we will also look carefully at the case for insisting that any non-UK company wishing to bid on a contract with the UK government should also publically state who really owns it using the government’s buying power as a if you like, battering ram for greater corporate transparency around the world.

So let me be clear. The vast majority of foreign-owned businesses that invest in property in the UK are entirely legitimate and proper, and have nothing at all to hide. They are welcome in Britain. Indeed I want more of them. We want one of the most open country in the world for investment. And I want Britain to be that country.

But I want to ensure that all this money is clean money. There is no place for dirty money in Britain. Indeed, there should be no place for dirty money anywhere. That is my message to foreign fraudsters: London is not a place to stash your dodgy cash”

Anti-corruption

A proposal to extend beneficial ownership rules to UK land-holding foreign companies

A report published today by Global Witness, alleging that an individual with ties to a former Kazakh public official owns large swathes of London, follows much recent interest in the issue of public officials owning property in the UK via secretive corporate structures that conceal their interest.

Earlier this month, an Early Day Motion (EDM) was filed at the House of Commons in support of the motion that the Land Registry should record the beneficial owners of foreign companies holding land in the UK. The EDM was triggered by the recent screening of From Russia with Cash on Channel 4, which alleged that significant sums of illicit funds from Russia were being invested in the UK property market while estate agents turned a blind eye. While EDMs often have little chance of being debated, they are frequently used as a means of raising the profile of certain issues among the media and the public.

The proposal to extend beneficial ownership rules to foreign companies was proposed in Transparency International UK’s publication Corruption on your Doorstep, which analysed data from the Land Registry and Metropolitan Police Proceeds of Corruption Unit to identify over 35,000 properties in London owned by off-shore companies and found that over 75% of suspects in grand corruption cases had used such structures to conceal their ownership of property.

At the recent Annual General Meeting of the All Party Parliamentary Group (APPG) on Anti-Corruption, the proposal to extend corporate transparency rules to foreign companies owning property in the UK was identified as a potential priority for the APPG to pursue during this Parliament.

Given the willingness of David Cameron to take a decisive lead on beneficial ownership (see our review of the legislation here), the opportunity to close an obvious loophole may be quite attractive to the Government and it will demonstrate a sincere commitment to addressing corruption and money laundering in the UK.

Anti-corruption

What states should know about unjust enrichment

We close out our series of tip-sheets on the causes of actions available to states who have been victims of bribery and corruption with a note on unjust enrichment. This is an interesting claim that sets the bar a little lower than some of the previous claims we have reviewed. There is no need to provide evidence of the underlying bribery or corruption – it is only necessary to prove that the defendant has been enriched at the expense of the state under one of four unjust factors. We also consider what does not need to be proved as well as the available defences and remedies. Our tip-sheet on unjust enrichment is available here.

Anti-corruption

The Small Business, Enterprise and Employment Act

One of the last acts of parliament was to pass the Small Business, Enterprise and Employment Act (“the Act”), which received Royal Assent on 26 March 2015.

Ostensibly, the primary purpose of this piece of legislation is to encourage entrepreneurship in the UK by helping small businesses to compete, grow and innovate. However, the Act itself is somewhat of a legislative hotchpotch, addressing various issues discussed by the government in recent years, ranging from insolvency and corporate transparency to employment law.

The main effects of the legislation are to:

  • Enhance the transparency of the ownership of UK companies;
  • Improve the ability of small and medium-sized businesses to access finance;
  • Reform aspects of the UK restructuring and insolvency regime.

From an anti-corruption perspective, the Act is very good news. In particular, provisions that deal with corporate transparency and disqualification of directors are likely to be of great assistance to those seeking to trace ownership of companies, as well as clamp down on corrupt practices. These aspects are discussed below.

Beneficial Ownership

The Act introduces some important changes to the Companies Act 2006, which includes a requirement for companies to identify persons with “significant control” over a company and also to keep a publicly available register of those persons. “Significant control” is defined as having more than 25% of a company’s shares or 25% of the voting rights or the rights to appoint of control the majority of the board of directors or the company. The significant control can also be through a partnership or trust. Further guidance from the government on the definition of “significant control” is expected by October 2015.

Furthermore, the measures also impose a proactive disclosure obligation on companies and individuals to investigate and register the details of persons with significant control on the appropriate company register. Once enacted, this requirement will apply to most companies. Listed companies are considered exempt on as they must already comply with certain disclosure obligations.  Limited Liability Partnerships are also exempt, although it is expected that the requirements will be extended to them also.

The register of persons with significant control over the company will include the following information:

  • Name, address, and date of birth (although this will be protected from disclosure to the public – thereby making identity theft more difficult)
  • Nationality – or, if an entity, the law under which it is governed.
  • The date on which the person become a beneficial owner, and the nature of their control or interest.

A company can impose sanctions if a person with significant control does not comply with the disclosure obligations. The Act also provides for criminal penalties for the company, its directors, secretary, and persons with significant control if they do not comply.

Corporate Directors and Shadow Directors

 The Act makes it much harder for an individual who has committed misconduct to act as a director. New grounds for disqualification have been introduced into the Company Directors Disqualification Act 1986, with the effect that the Secretary of State can now apply for a disqualification order if a director has committed certain offences outside Great Britain.

Section 87 of the Act introduces a new provision into the Companies Act 2006 that requires that all directors must be natural persons – it is now prohibited to appoint corporate directors. One year after the new Companies Act 2006 section coming into force, any corporate directors will cease to be directors. This should have the effect of reducing the number of companies, particularly shell companies, that are used for money laundering and criminal activity.

The Act also amends the Companies Act to provide that the general duties of directors also apply to shadow directors where and to the extent they are capable of applying.

Summary

Secret beneficial ownership of companies often hinders corruption and fraud investigations and claims.   The Act has created the world’s first public register of beneficial ownership of companies.   This is a historic achievement, although it will also increase compliance costs of private companies.

The timetable for implementation of the various measures under the Act is as follows:

  • Corporate directors to be prohibited, with exceptions (October 2015, with a 12 months’ transitional period for existing corporate directors).
  • Unquoted companies to keep a public register of people with significant control (January 2016). Details of these people to be provided to Companies House annually (April 2016).
  • Annual “confirmation statements” to replace annual returns (April 2016).
  • Private companies to be able to keep their statutory registers (e.g. registers of members and directors, and the new register of people with significant control) at Companies House, instead of having to keep their own registers (April 2016).