The lawyer who represented the defendant in what became the first conviction for ‘failure to prevent bribery’ has said it is ‘unfortunate’ that a deferred prosecution agreement (DPA) was not offered and that a larger company may have been given more preferential treatment.
Giving evidence to the House of Lords’ Bribery Act 2010 Committee, Iskander Fernandez, partner at commercial law firm BLM, said the hope was for the Crown Prosecution Service (CPS) to ‘invite the company [Skansen Interiors] into a DPA’ but that the CPS then decided against it. Fernandez said initial discussions with the prosecution counsel suggested a DPA could be secured but that the CPS then ‘bizarrely’ decided this would not be in the public interest.
London-based Skansen Interiors was convicted earlier this year under the ‘failure to prevent’ law. The law, created by section 7 of the act, stipulates that a business commits a criminal offence unless it can show that it has adequate procedures to prevent bribery.
The CPS, which brought the charges against the company and senior executives, claimed Skansen’s managing director at the time, Stephen Banks, bribed a project manager at a property company to award it refurbishment contracts worth £6 million. Banks pleaded guilty to three offences, while Graham Deakin, a former project manager at the property company, pleaded guilty to two offences.
Banks was sentenced to 12 months’ imprisonment and was disqualified as a director for six years and Deakin was sentenced to 20 months’ imprisonment and was disqualified as a director for seven years at Southwark Crown Court in April.
The company, which is dormant, was given an absolute discharge – meaning a conviction will not be registered on its record.
Fernandez told the committee that the decision to press for a conviction ‘gave a peculiar message that was not supported by previous DPAs’. He added that one of the legal arguments raised was: ‘Had it [Skansen] been a larger company there is very little doubt it would have been given the opportunity to negotiate [to enter into a DPA].’
He added: ’There is little sense why prosecution proceeded. One reason that has been suggested was to send a message that this behaviour of this type of behaviour is not to be tolerated. That is the case but that could still have been done through a DPA.’
However, Fernandez said the case should not be used as a ‘yardstick’ with which to measure the success of the act.
Asked what companies can do to ensure they have the right procedures in place Fernandez said it is crucial companies have a ‘bespoke’ policy in place. ‘A corporate needs to look at the risks it faces and any risks in its corporate structure,’ Fernandez said, adding that any procedure needs to cover off any red flags. ‘You need a bespoke policy, you can’t just pull of a blanket policy from the internet. It could end up being a company’s downfall if it is determined that the policy is not sufficient,’ he added.