Sections of the United Kingdom’s Bribery Act (2010) will apply to British Overseas Territory citizens and local businesses that carry on a certain level of commerce within the UK, a Cayman Islands Chamber of Commerce forum was told Wednesday.
However, the UK act will not be made retroactive with regard to offences for giving or taking bribes, bribing foreign officials or corporate bribery allegations.
Royal Cayman Islands Police Service Commissioner David Baines, who attended Wednesday’s Chamber conference in his capacity as Cayman’s Anti-Corruption Commission chairman, said he was seeking to determine whether – in the absence of a retroactive Anti-Corruption Law in the Cayman Islands – the UK Bribery Act could be used to prosecute offences that occurred prior to 2010.
“We have some fairly significant issues which took place earlier … so [the UK act] became a possible means to address some of these earlier issues,” Mr. Baines said.
The two attorneys presenting at the meeting, Andrew De La Rosa of International Chancery and Trusts Chambers and Samson and McGrath criminal defence lawyer Ben Tonner, said neither the UK act nor the Cayman anti-corruption law could be made retroactive. In fact, Mr. Tonner said the enactment of the Cayman Islands Anti-Corruption Law had repealed and replaced previous offences under the territory’s Penal Code. So any corruption or bribery related charges brought before the effective date of the law would have to be dealt with in common law.
This issue was brought to the public’s attention in early 2010 by former Cayman Islands Monetary Authority Chairman Tim Ridley. Both Mr. Ridley and Mr. Baines agreed during a compliance seminar held in 2010 that transitional provisions of the Cayman Islands Anti-Corruption Law (2008) were “poorly drafted”.
The transitional provisions, Mr. Ridley told the conference, provided a “get out of jail card” to prospective offenders who may have committed infractions prior to 2010.
“[What happened before 2010] does not fall under the Penal Code sections because they have gone and it does not fall under the Anti-Corruption Law because it was not enforced then,” Mr. Ridley told the 2010 compliance conference.
Mr. Baines also said at the 2010 conference that trying corruption cases under common law legislation “is not really ideal” in a modern day society.
The territory’s anti-corruption commissioner will not find any assistance in the 2010 UK Bribery Act, attorneys told the Chamber audience on Wednesday.
Although it cannot be used to address prior crimes, the UK Bribery Act (2010) is far-reaching and does have the ability to impact Cayman businesses.
The law applies to the activities of both the private and public sectors, Mr. Tonner said. Bribery offences that take place, at least in part, within the UK committed by anyone “with a close connection to the UK” may be prosecuted.
Close connections to the UK include individuals with British citizenship or those who hold British Overseas Territory citizenship; most Caymanian status-holders do possess a British Overseas Territory passport and have obtained overseas territories citizenship.
“We have the export of UK value judgments just about anywhere in the world,” Mr. De La Rosa said. “If that isn’t the long arm of the law, I don’t know what is.”
Whether the Cayman Islands are actually considered a part of the UK for the purposes of the law hasn’t been adjudicated yet in the case law, Mr. De La Rosa said. “It’s an awkward position,” he told the Chamber audience. “The UK does have certain powers to legislate here.”
Mr. Tonner said the reality of the situation is that UK officials lack resources to prosecute bribery/corruption-type offences, but he said government is also facing pressure from the British business community that has complained over certain sections of the law. Those sections allow corporations to be prosecuted for not preventing employees from soliciting or taking bribes. That provision has sent “shock waves” through the UK, Mr. Tonner said.
A defence under the UK Bribery Act would be for companies to show they have adequate procedures in place to prevent such situations from occurring.