Reed Smith Client Alerts

Authors: Charles Hewetson Eoin O'Shea George Brown Robert Falkner Rosanne Kay Tom Webley

The prosecution of Smith and Ouzman Ltd. for bribery is winding to a close, with the sentencing of two directors of the company for corruption. See the basics of the story here.

The 43-year-old sales director of the company got three years. The 72 year-old former chairman of the company got 18 months suspended, plus 250 hours unpaid work.

The convictions were for events prior to July 2011 and so the Bribery Act was not engaged. Instead, the Prevention of Corruption Act (which has a lower sentencing maximum) governed.

The most interesting aspect of the case is that the company itself was also convicted. This was even though, unlike the Bribery Act, there is no vicarious liability for companies under the old law. This meant the Serious Fraud Office (SFO) had to prove that the "directing mind" of the company had the relevant mental state. It will have helped a good deal that Smith and Ouzman was a small-ish enterprise and that the key emails were sent by or copied to members of the board.

The sentencing of the company will take place later. We should see the application of the new sentencing guidelines for economic crimes. It may well be that a very heavy economic penalty will cause serious harm to the business. Will the court take this into account as a mitigating factor? Whichever way it goes, it will be a straw in the wind for the much bigger bribery cases yet to come.

The case follows the recent conviction of two other UK businessmen (though not their company) under the Bribery Act‎. The Biofuels case, as it was known, was really about a Ponzi scheme, with the bribery charges ancillary. Click here to read more about this case (subscription required).

So these cases, individually, are small steps. But, taken together, they come close to a trend: that the Serious Fraud Office is starting to grow in confidence and credibility.

Client Alert 2015-031