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Issues To Consider From Britain’s First Conviction Of A Foreign Public Official Under The Bribery Act


Today’s post is from Zulfi Meerza (a lawyer and former prosecutor at financial crime specialists Rahman Ravelli in the United Kingdom) concerning a recent U.K. enforcement action against a foreign public official.

The jail sentence imposed on Romy Andrianarisoa is significant for being the first time a foreign official has been convicted in the UK for bribery.

Andrianarisoa, a former Chief of Staff to the president of Madagascar, and her French associate Philippe Tabuteau were jailed after a trial in London where the evidence included recordings of the two of them soliciting bribes from an undercover officer. Andrianarisoa was sentenced to three years and six months, and Tabuteau was sentenced to two years and three months.

The pair were charged in August 2023 after requesting money in exchange for their help securing an exclusive mining joint venture with the government of Madagascar. They had attempted to solicit a bribe from Gemfields, a UK-based mining company.

Andrianarisoa approached Gemfields via a third party and then organised a number of conversations with the company to discuss specific details about a possible deal. During those 2023 meetings she emphasised her position as Chief of Staff to Madagascar’s President Rajoelina and her direct access to – and influence on – the country’s leadership. Tabuteau, who Andrianarisoa said was a colleague of hers, explained that he had no formal role in government but was working “in a private and personal capacity’’.

In March 2023, Tabuteau arranged a face-to-face meeting with a Gemfields representative and requested a fee for his services in return for “delivering milestones”. He stressed the steps that he and Andrianarisoa had taken to ensure their actions were kept secret, saying they would never contact each other on the telephone or by email and would only conduct conversations face-to-face or over WhatsApp.
The pair requested 10,000 Swiss Francs each as a part payment, as well as two further instalments of 125,000 Swiss Francs for the delivery of an “invitation to initiate the collaboration” from President Rajoelina and the government’s agreement on key terms relating to the joint venture. They also tried to gain a 5% equity stake in the proposed collaboration, which would have been worth approximately £4 million.
Gemfields became suspicious and reported their concerns about corruption to the NCA. The NCA then began an investigation, which used surveillance and other covert tactics.

On 10 August 2023, Andrianarisoa and Tabuteau were arrested by NCA officers at a hotel in Victoria, London. The trial saw the prosecution make extensive use of covert recordings that had been made by investigators.

The case is a notable first for UK enforcement agencies. There are factors that explain why such a successful prosecution has not happened until now – and why it may be unrealistic to expect a flood of similar such cases.

It is no great surprise that there have not been more cases like this one. Cases involving an element of bribery or fraud are usually based on historical conduct – behaviour that is brought to the attention of enforcement agencies after the event has occurred. This case, however, was unique as it was a bribery case that successfully relied on ‘smoking gun’ evidence to secure convictions. The defendants were, to all intents and purposes, caught and recorded in the act. It is not often that the possibility to do this presents itself to the authorities in financial crime cases.

This approach involved arranging a meeting in London between Andrianarisoa and an undercover agent. As a result, the authorities did not have to go through the extradition process to bring her to Britain to face trial. This can prove difficult in such cases as, despite the wide reach of the UK’s Bribery Act 2010, it can be a huge challenge to prosecute foreign officials due to, amongst other factors, the possible political ramifications in their home country. Without that country’s support for a prosecution, extraditing the suspect to face trial in another state can be hugely problematic.

This was a case that did not face obstacles relating to evidence or extradition. As a result, it was a swift and successful prosecution. But that is a rarity.

We could continue to see convictions of foreign nationals or UK employees due to the wide territorial application of the Bribery Act 2010 – and the NCA appears to be very active in investigating kleptocracy cases. In this particular case, the illegal acts were caught by UK law, as evidenced through recordings of meetings that took place in London. However, had the bribery acts taken place outside of the UK, the conduct could have still been caught by UK law, so long as it could be proved that the perpetrator had a “close connection” with the UK. But while there is the scope for such prosecutions, the practical challenges can mean they are less than straightforward.

Covert intelligence played a large part in this prosecution. But the case may not necessarily be a sign of things to come regarding white-collar crime prosecutions.

The Serious Fraud Office (SFO), the UK’s primary white collar crime enforcement agency, is legally able to gather evidence via covert intelligence, under powers contained in the Regulation of Investigatory Powers Act 2000 (“RIPA”). The current SFO Director Nick Ephgrave’s interest in using these powers has been incorporated into the agency’s latest five-year strategy, which says that it expects to “identify and develop opportunities to maximise covert capabilities within [its] operations”.

It would, however, be unrealistic to think that the SFO will regularly gather information / potential evidence in its cases using covert methods. This is due to the potential legal difficulties in relying on such evidence at trial, as well as the inherent difficulties in obtaining ‘live’ evidence in cases of white-collar crime. Then there is the need for specialist training and management when it comes to the use of undercover officers and covert sources. If such an operation goes wrong, the consequences could be disastrous for an investigation, so such an approach cannot be regarded as a quick fix or an easy option.

The practical obstacles to gathering live information on white-collar crimes may, therefore, act as a limiting factor on the use of covert intelligence. That being said, this particular case holds useful lessons when it comes to utilising covert methods; particularly if it can be shown that the human intelligence source(s) did not induce the defendant to commit an offence. It is more likely, however, that the SFO will continue to rely on whistleblowers and witnesses close to the alleged criminality to gather inculpatory evidence.

The Andrianarisoa case can be seen as a sign that UK law enforcement agencies are taking an increasingly active approach to investigations. But it is more than likely that such agencies know about the aforementioned obstacles to greater use of covert intelligence, which may be one reason why the SFO Director has been calling for measures to allow for payment to whistleblowers at the same time as he has been expressing his enthusiasm for using covert intelligence.

Apart from this case being a legal first, there are other aspects of it that make it worthy of attention.

The speed at which the investigation and prosecution was conducted is a remarkable feature of the case. It took just under a year to go from initial reporting of the criminality to conviction. There is, therefore, an argument to say that appropriate use of covert tactics in future investigations could potentially lead to speedier justice.

The exemplary conduct of the reporting company, Gemfields, can be viewed as a lesson for corporates in ensuring that they have in place comprehensive anti-bribery and corruption compliance procedures. Such procedures will have allowed Gemfields to quickly report its concerns about corruption to the NCA and show to the agency – if and when required – that the company had in place “adequate procedures” to prevent associated persons from engaging in bribery. As a result, the illegal conduct was swiftly identified, investigated and the evidence obtained for a prosecution.

The case also highlights the importance of correct management when it comes to obtaining covert evidence. Such evidence was of great value in securing the convictions of Andrianarisoa and Tabuteau. But in the United States, a number of convictions in similar cases have been overturned on appeal, with the courts finding that the covert evidence obtained was tainted by the use of an “agent provocateur” and that admissions made in the undercover stings were not admissible as evidence. English courts would almost certainly act in the same way if they had similar concerns about the use of covert evidence in a case.

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