ENGLAND & WALES Law and Practice Contributed by: John Kaye and Piers Desser, Carson Kaye
personal gain or to cause loss. This is commonly engaged in employer–employee or trustee relation - ships. Beyond the Fraud Act, conspiracy to defraud remains a common law offence. It is broadly defined and cap - tures agreements between two or more persons to dishonestly prejudice another’s economic interests, even where the conduct might not fall within a specific statutory offence. It is frequently used in complex or multi-party fraud cases. Related conduct may also be prosecuted as theft under the Theft Act 1968, where there is dishonest appropriation of property belonging to another or under offences of false accounting. All fraud offences require proof of dishonesty, now assessed under the objective test confirmed by the Supreme Court in Ivey v Genting Casinos . The maximum penalty for fraud and conspiracy to defraud is ten years’ imprisonment and/or an unlim - ited fine. Sentences are determined in accordance with the Sentencing Council’s guidelines, taking into account culpability, harm, and factors such as abuse of trust, sophistication, and the scale of financial loss. 3.2 Bribery and Corruption The principal bribery offences are contained in the Bribery Act 2010, which applies to both the public and private sectors and has broad extraterritorial reach. There are two core general offences. First, offering, promising or giving a bribe involves providing a finan - cial or other advantage to induce or reward improper performance of a relevant function or activity. Second, requesting, agreeing to receive or accept - ing a bribe captures the passive side of the conduct. “Improper performance” is assessed by reference to what a reasonable person in the UK would expect in the circumstances. A distinct offence concerns the bribery of foreign pub - lic officials. This arises where an advantage is offered or given to a foreign public official with the intention of influencing them in their official capacity in order
to obtain or retain business or a business advantage. Unlike the general offences, there is no requirement to prove “improper performance”. The Act also introduced the corporate offence of fail - ure of commercial organisations to prevent bribery. A company is strictly liable where an associated per - son (such as an employee, agent or subsidiary) bribes another person intending to benefit the organisation. The only defence is that the organisation had ade - quate procedures in place to prevent bribery. Individuals face up to ten years’ imprisonment and/or an unlimited fine; companies face unlimited financial penalties and significant reputational consequences. 3.3 Money Laundering The principal money laundering offences are set out in the POCA. There are three primary offences. • Concealing, disguising, converting, transferring or removing criminal property. • Entering into or becoming concerned in an arrangement which facilitates the acquisition, retention, use or control of criminal property by another. • Acquiring, using or possessing criminal property. “Criminal property” is broadly defined as property rep - resenting a benefit from criminal conduct, where the alleged offender knows or suspects its criminal origin. These offences apply to the proceeds of any predi - cate offence. POCA adopts an “all crimes” approach, meaning that any conduct constituting an offence in England and Wales (or which would do so if it occurred there) can generate criminal property. In practice, common predicates include fraud, tax evasion, brib - ery and sanctions breaches. In addition, the failure to disclose and tipping off offences apply primarily to those in the regulated sector, such as financial institutions, lawyers and accountants.
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