14

BRIBERY AND MONEY

LAUNDERING

14.1 The Bribery Act 2010 Further Reading

14.2 Money Laundering

1 4 . 1 T H E B R I B E RY AC T 2 0 1 0

Bribery is a worldwide scourge to rival almost any other modern global ill, such as pol-
lution or people-trafficking.1 The cost of corruption is estimated to be more than 2 per
cent of global GDP—between $1.5 billion and $2 trillion: the World Bank calculates
that more than $1 trillion is paid in bribes every year.2 The European Union Parlia-
ment has estimated that corruption costs the EU between €179 and €990 billion each
year.3 In terms of business impact, corruption can increase the cost of doing business
by as much as 10 per cent, by distorting markets and deterring trade and investment.
In terms of social impact, Transparency International’s 2015 Corruption Perception
Index estimated that six billion people live in societies where corruption is rife, lead-
ing to widespread inequality and poverty.4 The UK rose to become the eighth cleanest
country in the 2017 Corruption Perception Index,5 but a key issue for UK criminal
lawyers is not simply the amount of corruption that occurs within the UK. It is how

1
See Department for International Development, ‘Why Corruption Matters: Understanding Causes,
Effects and How to Address Them’ (2015), <https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/406346/corruption-evidence-paper-why-corruption-matters.pdf>,
chapter 4.
2
<https://homeofficemedia.blog.gov.uk/2017/12/11/economic-crime-factsheet/>.
3
European Parliamentary Research Service, The Cost of Non-Europe in the Area of Organised Crime
and Corruption (2016), <http://www.europarl.europa.eu/RegData/etudes/STUD/2016/579319/EPRS_
STU%282016%29579319_EN.pdf>.
4
Transparency International, ‘Corruption Perceptions Index 2015’, <https://www.transparency.org/
cpi2015>.
5
Transparency International, ‘Corruption Perceptions Index 2017’, <file:///H:/Bribery/2017_CPI_
Brochure_EN.PDF>.

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 2 ashworth’s principles of criminal law

much corruption is sanctioned or tolerated by officials, or by those with business inter-

ests in the UK, in relation to the conduct of their employees or agents working outside
the UK (especially in ‘at risk’ countries that struggle to eliminate corruption). Since
2004, more than £180 million of property in the UK has been brought under criminal
investigation as the suspected proceeds of corruption. In more than 75 per cent of
these cases, offshore corporate secrecy had been used.6 This reminds us that in almost
no other field is the transnational character of crime better illustrated than in the field
of financial crime.7 It is frequently claimed that the UK is not a corrupt country, based
on the UK’s favourable placing in Transparency International’s Corruption Perception
Index (referred to previously). But the degree of the UK’s corruption can be judged by
a different yardstick: how much of the global proceeds of crime (and of corruption in
particular) is laundered through the UK and its Crown Dependencies and Overseas
Territories? Judged by that criterion, an alternative view is that, for far too long, suc-
cessive governments have turned a blind eye to the UK’s status as a global corruption
‘honey pot’.8
It is important to dispel the image of bribery solely involving one wealthy person or
business enriching another in order to oil the wheels of commerce, important though
that problem may be. Globally, corruption is in fact closely associated with income
inequality and poverty. Poorer people have to pay bribes more often for public services,
and researchers have found that:
lower income households and businesses pay a higher proportion of their income in bribes
than do middle- or upper-income households: as such, bribes are like a regressive tax, since
they [the poor] must allocate a greater amount of their income than the rich to bribes.9

In 2010, Parliament swept away most of an ancient patchwork of statutes governing

bribery, and replaced them with a single piece of legislation, the Bribery Act 2010. The
immediate motivation for doing so was not simply a wish to simplify and modernize
the law. Along with many other countries, the UK is a signatory to the Anti-Bribery
Convention of the Organisation for Economic Co-operation and Development
(OECD).10 The Convention’s main focus is the ‘supply side’ of bribery, as its affects
government and administration in overseas jurisdictions. In other words, the focus
is on those—companies or individuals—who pay bribes to foreign public officials.
Following a well-publicized scandal involving serious allegations of bribery against
a UK-based multinational company, BAE Systems,11 the OECD Working Group on

6
<https://homeofficemedia.blog.gov.uk/2017/12/11/economic-crime-factsheet/ (last accessed
08/09/2021).
7
Mark Button, ‘Cross-Border Fraud and the Case for an “Interfraud”’ (2012) 35 Policing: An International
Journal of Police Strategies & Management 285.
8
http://www.euronews.com/2017/04/03/the-uk-is-the-most-corrupt-country-in-the-world-anti-mafia-
journalists-saviano (last accessed 09/08/2021).
9
Department for International Development, n 1, at 46.
10
https://www.oecd.org/corruption/oecdantibriberyconvention.htm (last accessed 09/08/2021).
11
https://www.theguardian.com/world/bae (last accessed 09/08/2021).

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 bribery and money laundering 3

bribery12 became concerned that the UK lacked the legal resources to prosecute brib-
ery committed overseas by UK corporate entities. The Working Group recommended
that the UK ‘enact modern foreign bribery legislation and establish effective corporate
liability for bribery as a matter of high priority’.13 The 2010 Act was the result.
The 2010 Act did not, though, simply modernize the language of the existing law
and extend corporate liability for bribery. The 2010 Act is recognized as a radical piece
of legislation, for two main reasons. First, the 2010 Act is almost unique worldwide in
drawing no formal distinction in its main offences between bribery in the public sector
and bribery in the private sector (although there is a specific OECD-compliant offence
of bribing a foreign public official). Instead of relying on this distinction, prohibitions
on bribery in both sectors are defined through a focus on a shared concept of wrongful
conduct: the ‘improper performance’ of a function, in connection with the provision
of an advantage of some kind (such as a payment).14 Whether that function is, say, that
of a passport official (a public sector function) or that of a company accounts manager
(a private sector function) is not a consideration relevant to liability, although the cor-
rupt betrayal of a public office may in many instances warrant a substantially higher
sentence. There are two main reasons for departing from orthodoxy by defining the
general offences of bribery without regard to whether the offence involved a public offi-
cial. The first is pragmatic, albeit important. This is the difficulty, in the modern world,
of identifying who is to be regarded as a ‘public official’ for the purposes of any offence
specifically targeted as such persons. For example, are those working for private firms
delivering correctional services (aspects of punishment) public officials? Or are they
simply private sector workers delivering public services? If the latter are to be included
within the scope of any offence focused exclusively on the public sector, then the dif-
ficulty of deciding what is a ‘public service’ arises. Are those who clean the windows
of public sector buildings providing a ‘public service’? Second, there is an element of
arbitrariness in a focus specifically on public sector bribery. For example, many people
might regard corruption in the charitable sector as involving a betrayal of the public
interest every bit as great as that involved in corruption in (say) local government.
The second reason why the 2010 Act is considered radical is that s 7 of the Act
introduced a relatively novel species of offence to English law: the corporate offence
of ‘failing to prevent’ bribery anywhere in the world engaged in by an employee or
agent of the commercial organization in question. The offence is aimed at deterring
and punishing commercial organizations which fail to ensure proper steps are taken to
prevent their employees or agents committing bribery when acting to further the orga-
nization’s business interests. However, in seeking to achieve its goal, s 7 does not follow
the dictates of orthodox criminal law theory by creating a fault-based offence of (say)

12
The Group is responsible for monitoring the implementation and enforcement of the Convention by
member countries.
13
<http://www.oecd.org/daf/anti-bribery/oecdgroupdemandsrapidukactiontoenactadequateanti-
briberylaws.htm>.
14
‘Improper performance’ is defined in s 4.

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 4 ashworth’s principles of criminal law

‘negligently allowing bribery to be committed’. Instead, s 7 takes a more sophisticated

approach. Section 7 makes it a matter of strict criminal liability that the commercial
organization failed to prevent bribery by an employee or agent, while providing a com-
plete defence in s 7(2) if the organization can show that, at the relevant time, it had in
place ‘adequate procedures’ to prevent bribery by employees or agents. So, what the
prosecution has to prove beyond reasonable doubt is that the organization failed to
prevent bribery. In response to that, if the defence in s 7(2) is invoked, it will be for the
organization to show—and not for the prosecution to disprove—that its procedures
to prevent such conduct were adequate in relevant respects. The offence is a new de-
parture in English law, because it applies a technique of criminal law creation from
the field of regulation (strict liability, plus defence) to the construction of an offence
attracting stigma upon conviction (a malum in se). Most unusually, when introducing
the offence, the government also introduced non-binding guidelines for companies
on how to ensure that their procedures would meet the adequacy requirement.15 The
procedures are based around six principles:
(i) Proportionate procedures (ie procedures proportionate to the risks involved in
doing the business, in context, bearing in mind the size and resources of the
firm);
(ii) Top-level commitment. Bribery prevention is not just for employees and agents
doing deals. There must be a lead taken at Board and senior management level.
(iii) Risk assessment. Companies should not do business ‘blind’. There needs to be
risk assessment, not just in relation to profit-making activity, but also in relation
to (say) sub-contracting, joint ventures, and the hiring of employees and agents.
(iv) Due diligence. This is in one sense applied risk assessment. It involves, for
example, the development of proper procedures for assessing the bona fides of
individual contracting parties, partners, employees, and agents.
(v) Communication. Bribery prevention needs to be ‘dynamic’, not static. Putting
procedures on paper and then filing them in a drawer is not sufficient. There
needs to be continuous, active engagement with contracting partners, employ-
ees, and agents on the issues, so that they become part of the culture of the firm.
(vi) Monitoring and review. The adequacy of procedures in a medium to large-sized
firm will almost always, in part, fall to be judged in terms of way in which it seeks
to judge its own success or failure, in achieving the goals in (i) to (v). If it has no
system for doing that, then its procedures are unlikely to be judged adequate.
It is not a legal requirement that firms follow these guidelines to the letter. However,
ignoring them will inevitably involve the risk that, if a firm fails to prevent bribery by
one of its employees, agents, or subsidiaries, it will also struggle to establish that its
bribery-prevention procedures were adequate.

15
https://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf.

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 bribery and money ­l aundering 5

(a) OFFERING, GIVING, REQUESTING, AND RECEIVING

A BRIBE
The 2010 Act divides ‘bribery’ into two offences, one concerned with offering or giving
a bribe and one with requesting or receiving a bribe. Two threshold points should be
made about both offences. First, the offence of bribery does not require an advantage
in fact to be given or received (the point made earlier about the inchoate mode in
which the offence is defined). It is enough, for example, that a bribe has been promised.
Second, each offence can be committed in one of two sets of circumstances. The first
is where the bribe relates to the improper performance of a function. This is called the
‘improper influence’ model of bribery. The second is where the acceptance of the bribe
would itself constitute the improper performance of a function. This is the ‘wrongful
conduct’ model of bribery. This distinction is best illustrated by example.
So far as paying bribes is concerned, s 1 says:
A person (‘P’) is guilty of an offence if either of the following cases applies.
(2) Case 1 is where—
(a) P offers, promises or gives a financial or other advantage to another person, and (b) P
intends the advantage, (i) to induce a person to perform improperly a relevant function or ac-
tivity, or (ii) to reward a person for the improper performance of such a function or activity.

Case 1 is an example of the ‘improper influence’ model of bribery. Suppose that P

promises R (the recipient) a promotion if R will use his or her position in the company
accounts department to conceal some excessive expenditure incurred by P on company
business. This promise is an example of ‘Case 1’ bribery, because P has promised R an
advantage (promotion) to induce—influence—R to perform a function improperly.
A key element of Case 1 bribery is that the impropriety lies in the connection be-
tween P’s conduct and the (non-)performance of the function by R, in the circum-
stances. In that regard, there need not necessarily be any impropriety in offering the
advantage as such. In the example given, it could be that P was going to promote R on
merit anyway (so it was not wrong to offer the promotion, as such). What was wrong
was seeking to use the opportunity to induce R to do something improper to benefit
P (P’s ‘improper influence’). By contrast, in Case 2, set out in s 1(3), the focus is on
the impropriety of offering an advantage as such, in the circumstances (P’s ‘wrongful
conduct’):
Case 2 is where—
(a) P offers, promises or gives a financial or other advantage to another person, and (b) P
knows or believes that the acceptance of the advantage would itself constitute the improper
performance of a relevant function or activity.

In Case 2, there need be nothing specific to be done on R’s (the recipient’s) part in
exchange for P’s offer or promise. What matters is that P knows or believes that it
would be improper for R to accept the offer or promise. For example, suppose P offers
R—a passport officer—£1,000 to process P’s passport more quickly, and R accepts the
offer. However, in accepting the offer, R conceals from P that P’s passport application

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 6 ashworth’s principles of criminal law

has already been successfully processed. This might be fraud on R’s part (if the gain is
intentionally made through a false implied representation that the passport has not yet
been processed) but it is certainly Case 2 bribery, contrary to s 1(3). P must know or
believe that for R to (agree to) accept the advantage, in the circumstances, would itself
be improper, an improper performance of R’s official functions.
In the example just given, R was in a position to perform his or her function im-
properly in exchange for the advantage offered by P. It is just that the timing of P’s offer
meant that the facts were such that the function had already been performed. However,
the wording of the offence is intentionally meant to cover cases going beyond this,
where—as P knows—it would be an improper performance of function for R to accept
the advantage. Consider this example:
A judge, R, rules in P’s favour in a case, entirely on the merits, resulting in P receiving a
huge award of damages. A year later, P meets R by chance, and offers R an expensive skiing
holiday paid for by P’s company, as a ‘reward’ for deciding the case in P’s favour.16

In this example, P will be liable under s 1(3) for Case 2 bribery, if P knows or believes
that it would be an improper performance of R’s function for R to accept the offer.17 In
this, UK law goes further than many jurisdictions in its conception of ‘bribery’. In the
USA, for instance, there must be a connection between an advantage and a specific act
requested or performed if the conduct in question is to be regarded as bribery.18 Simply
giving a gratuity to an official is not, in itself, regarded as bribery (although it may be
treated as a lesser offence). So, in this respect, UK law is considerably wider.
What about the fault element in s 1? In Case 1, P must be proved to have intended
the advantage to induce R to behave improperly, or to have intended to reward R for
behaving improperly. In Case 2, P must be shown to have known or believed that it
would involve the improper performance of a function for R to accept the advantage
as such (Case 2). In Case 1, it is probably accurate to say that the intention that must
be proved is a ‘conditional’ intention; that is, an intention that R should perform his or
her function improperly, if need be. It would be perverse if P could escape liability by
saying that he only intended R to perform the relevant function (in connection with
the advantage) if it would be improper for R to do so, and not if R found a way to do it
that fell within his or her powers. Case 2 is rightly restricted to cases where P knows or
believes that R will perform a function improperly by accepting the advantage. Other-
wise the law would be too broad, by including too much risk-taking behaviour.
In broad terms, s 2 of the 2010 Act mirrors s 1, in the way that it defines the offence
of bribery as it relates to the person—‘R’—who receives or requests the bribe. In other
words, the focus is either on cases in which the focus is on improper influence: the
improper performance connected to the advantage (‘Case 3’); or on cases of wrongful

See the discussion in Law Commission, n 22, para 3.184.

16

Courts and Tribunals Judiciary, Guide to Judicial Conduct (2018), <https://www.judiciary.uk/wp-

17

content/uploads/2016/07/judicial-conduct-v2018-final-2.pdf>, 12–13.
18
US v Sun-Diamond Growers of California 526 US 398 (1999).

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 bribery and money laundering 7

conduct: where the focus is on the impropriety in itself of asking for an advantage
(‘Case 4’). The relevant part of s 2 says:
Case 3 is where R requests, agrees to receive or accepts a financial or other advantage in-
tending that, in consequence, a relevant function or activity should be performed improp-
erly (whether by R or another person).
Case 4 is where (a) R requests, agrees to receive or accepts a financial or other advantage,
and (b) the request, agreement or acceptance itself constitutes the improper performance
by R of a relevant function or activity.19

So, if a university lecturer asks a student for payment in order to write an unduly fa-
vourable testimonial for the student, such conduct will fall within s 2(2) as an example
of Case 3: improper influence. By contrast, suppose that a passport officer writes to an
applicant asking for sexual favours in exchange for processing the passport applica-
tion, without telling the applicant that the application has already been successfully
processed. Such a case will be a ‘Case 4’ case, falling under s 2(3): wrongful conduct.
The first conviction under the 2010 came under s 2 of the 2010 Act. A Court Clerk at
Redbridge Magistrates Court wrote to people charged with traffic offences offering to
remove the details of their cases from the system, in exchange for payment. He was
sentenced to imprisonment for six years.20
Section 2 makes it clear that R may be liable, even when the relevant function is
performed improperly by someone else (eg at R’s direction), and even when the advan-
tage is to benefit another person. The latter provision (s 2(6)(b)) is crucial, because R
will commonly request advantages for his or her family or friends, or for a nominally
independent organization in fact controlled by R. Most importantly, s 2(7) also makes
it clear that in Case 4,21 ‘it does not matter whether R knows or believes that the perfor-
mance of the function or activity is improper’. In Case 4, by way of contrast with Case 3,
there is no mental element to be proved by the prosecution separate from the intention
to request or receive the advantage. Section 2 thus creates significant and stigmatic of-
fences of no fault liability for bribery, where R’s liability is concerned. Considering the
contrast between Case 2 and Case 4, while, as we have seen, P must know or believe that
it would be improper for R to accept the advantage, it is not necessary for R to know or
believe that his or her acceptance of the advantage would be improper. So, were P and R
to be jointly charged in the same proceedings in respect of the same course of conduct,
the prosecution would have to prove fault against P, but not against R.
One justification for this difference is that R (who is after all responsible for perform-
ing the relevant function) is simply assumed to know what the limits of propriety are in
relation to performance. The argument is that it should not be necessary for the pros-
ecution to have to prove that, say, a police officer was aware that it would be improper
for him or her privately to accept a reward for doing his or her duty. It can be taken for

19
The Bribery Act 2010, s 2 also deals with two further sets of cases targeted at R, in s 2(4) and s 2(5).
20
https://www.bbc.co.uk/news/uk-england-london-15689869 (last accessed 10/08/2021).
21
Also, in cases 5 and 6, not discussed here.

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 8 ashworth’s principles of criminal law

granted that the officer knows this.22 While that may be true in this instance, it may be
more doubtful in other cases covered by s 2. Suppose a newspaper’s restaurant critic
(R) accepts a weekend stay offered by a hotel, some weeks after the hotel noticed that
the critic had favourably reviewed its restaurant. It seems harsh to say that it is irrel-
evant to the question of R’s liability for bribery, contrary to s 2, whether or not R knew
or believed that acceptance of the offer would be improper. There is, though, a second
justification for the hardline stance on (no) fault dictated by s 2(7). This is that the Law
Commission, whose draft Bill formed the basis for the new law, did not wish to retain
in the new law vestiges of the old that had led to persistent uncertainty, such as the
requirement that a defendant have acted ‘corruptly’ (possibly meaning ‘dishonestly’).23
In that respect it should be noted that, in its proposals for reform of the offence of
misconduct in a public office, the Law Commission took the view that, amongst other
things, D need only be ‘aware of the circumstances which determine that the position
in question is a public office’.24 The Law Commission did not stipulate that D must be
aware that he or she in fact occupied a public office. Such an approach is not all that
dissimilar to the approach taken to Case 4 in the 2010 Act. It follows, thus, that if cases
such as that of the restaurant critic should not be prosecuted, this must come about
through a favourable exercise of prosecutorial discretion.

( b ) W HAT I S T H E ‘I M P ROP R I E T Y ’ I N B R I B E RY ?
Something must be said about what makes it ‘improper’ for someone to offer or request
an advantage. Suppose that R, who is employed by P, finds that he or she has had to
work exceptionally hard to meet a work deadline set by P. In consequence, R asks P for
a salary supplement as a reward for his or her hard work. Such conduct should clearly
not fall foul of s 2, because the making of such a request for an advantage does not
constitute an ‘improper’ performance of R’s function. Similarly, suppose Company X is
competing for a contract with Company Y. An agent of Company X contacts Company
Y to suggest that Company X should be awarded the contract because of Company X’s
history of prompt and efficient performance of contracts with Company Y. Quite obvi-
ously, such a request for an advantage—the award of the contract—cannot be regarded
as improper; on the contrary, it is perfectly legitimate market practice. Sections 3 and 4
of the 2010 Act seek to address the difficult problem of distinguishing between proper
and improper performances of a function for the purpose of defining bribery.
Section 3 says that a function or activity will only be capable of being performed
‘improperly’, for the purposes of the law of bribery, if it meets one or more of the fol-
lowing conditions:
(3) Condition A is that a person performing the function or activity is expected to per-
form it in good faith.

22
Law Commission, Reforming Bribery (Law Com no 313, 2008), para 3.190.
23
Law Commission, n 22, part 1.
24
Law Commission, Reforming Misconduct in Public Office: Summary (CP 229, 2006), para 1.43.

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 bribery and money ­l aundering 9

(4) Condition B is that a person performing the function or activity is expected to per-
form it impartially.
(5) Condition C is that a person performing the function or activity is in a position of
trust by virtue of performing it.25

The 2010 Act sought to avoid giving overly technical descriptions of when someone
was under an obligation to behave with integrity in relation to the offer or acceptance of
advantages in the public or commercial spheres. So, s 3(3)–(5) gives ordinary language
understandings, suitable for application by juries, of when such obligations arise. Cru-
cially, as indicated earlier, no distinction is drawn between functions performed in the
public and in the private sectors. Seeking to employ that distinction inevitably entails
the drawing of difficult, and perhaps arbitrary, distinctions when, as suggested earlier,
the activities of officers of major charities are in issue. Most people think of charities
as performing public services, but many are in fact private bodies, albeit private bod-
ies regulated by a public body, the Charity Commission. So if, for example, a charity
worker offers aid in exchange for sexual favours, under the 2010 Act there will be no
need—by way of contrast with almost all other jurisdictions—to decide whether the
worker is performing some kind of ‘public’ function. What will matter is whether he or
she is in the course of employment—s 3(2)(c)—and whether he or she is in a position
of trust—s 3(5). The answer to both of those questions will clearly be ‘yes’.
It is, obviously, not enough simply that R is performing a function or activity that
meets the criteria set out in s 3. R must (offer to) do something wrong, or P must ask R
to act wrongly. In that regard, s 4 says:
For the purposes of this Act a relevant function or activity—
(a) is performed improperly if it is performed in breach of a relevant expectation, and
(b) is to be treated as being performed improperly if there is a failure to perform the func-
tion or activity and that failure is itself a breach of a relevant expectation.

This is an abstract statement of principle, but what it requires the prosecution to show
is simply that it was in the nature of the function or activity being performed (or to be
performed) by R that it involved an ‘expectation’ that R would act, to use the language
of s 3, in good faith, impartially, or in accordance with the position of trust they were
in. To go back to our example of the charity worker, he or she is in a ‘position of trust’
vis-à-vis the recipients of aid (s 3), and has—or so we may assume—clearly breached
an ‘expectation’ of how he or she will behave in relation to the discharge of that position
of trust, although this is ultimately a matter for the jury. The broad, ordinary language
terms in which ss 3 and 4 are drafted means that there will be controversy in some
cases over the application of the 2010 Act. Suppose that a search engine places adver-
tisements on the first search page if the companies being advertised pay for that to hap-
pen, or imagine that a supermarket accepts payment to display goods at the checkout
if the producers pay them enough to place the goods for sale there. Is the search engine

25
Our emphasis throughout.

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 10 ashworth’s principles of criminal law

or the supermarket under a duty of good faith or impartiality, or in a position of trust,

in relation to these marketing activities (s 3)? Even if one or other of them is found by
the jury to be under such a duty, has there been a breach of an expectation about how
the duty will be performed (s 4)? Perhaps such activities by search engines and super-
markets are so well-known and broadly tolerated, even if we might wish they did not
engage in them, that there has been no breach of a relevant expectation.

( c ) TAC K L I N G B R I B E RY OV E R SE A S
A key aim of the 2010 Act was to provide a legal basis for deterring and punishing
individuals, and in particular commercial organizations, who seek to engage in (or
in some way tolerate or permit) bribery overseas. It could be argued that, in some
countries, it is all but impossible to do business without engaging in bribery, and so to
prohibit such conduct shuts businesses out of these countries, to the detriment of both.
Such arguments should be resisted. It is in principle wrong for firms who know they
must obey the rule of law and respect ethical commercial practice at home to throw off
those constraints when doing business abroad, effectively undermining any efforts the
relevant countries might make to establish and enforce such obedience and respect.
International (commercial) relations are not worth establishing if such an ethical price
must be paid. For that reason, English law resists the principle, embedded in US law
and some other jurisdictions as it applies to overseas bribery, that the provision of
small bribes (so-called facilitation payments) is acceptable.26
To begin with, in describing the relevant functions respecting which improper per-
formance may amount to bribery, s 3(6) of the 2010 Act says that a function or activity
is a relevant function or activity even if it:
(a) has no connection with the United Kingdom, and
(b) is performed in a country or territory outside the United Kingdom.
Further, in terms of the expectations one should have of people performing such func-
tions, s 4 of the 2010 Act says:
(1) For the purposes of sections 3 and 4, the test of what is expected is a test of what a rea-
sonable person in the United Kingdom would expect in relation to the performance
of the type of function or activity concerned.
(2) In deciding what such a person would expect in relation to the performance of a
function or activity where the performance is not subject to the law of any part of the
United Kingdom, any local custom or practice is to be disregarded unless it is permit-
ted or required by the written law applicable to the country or territory concerned.

26
See TRACE, ‘The High Cost of Small Bribes’ (2015), <https://www.traceinternational.org/Uploads/
PublicationFiles/TheHighCostofSmallBribes2015.pdf>. However, it does not follow that it will always be in
the public interest to prosecute a company for paying a small facilitation payment. See Serious Fraud Office,
‘Bribery Act Guidance’ (2012), <https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/bribery-
act-guidance/>.

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 bribery and money laundering 11

Put together, in effect, what these sections entail is that when deciding what is expected
of, say, a foreign commercial agent engaging in a tendering process in an overseas
jurisdiction on behalf of a UK firm, the standard of ethical conduct to be expected of
that agent is the standard that would be expected of a comparable person engaging in
such a process in the UK. There is not one (highly ethical) rule for commercial agents
and public officials in the UK, and another (lax ethical) rule for commercial agents and
public officials overseas. A number of the Deferred Prosecution Agreements reached
between Companies and the Serious Fraud Office have involved bribery that took
place overseas.27
Second, the 2010 Act creates specific offences of bribing a foreign public official
(s 6)28 and, as indicated earlier, of corporate failing to prevent bribery by someone
associated with the company—anywhere in the world—who was seeking to obtain
business or an advantage in the conduct of business for the commercial organization
in question (s 7). The latter offence, as we have seen, is subject to a defence that the
commercial organization had in place ‘adequate procedures’ to prevent bribery, even
though bribery was in fact committed by someone associated with the organization.
The key part of s 7 reads:
A relevant commercial organisation (‘C’) is guilty of an offence under this section if a
person (‘A’) associated with C bribes another person intending—
(a) to obtain or retain business for C, or
(b) to obtain or retain an advantage in the conduct of business for C.
(2) But it is a defence for C to prove that C had in place adequate procedures designed
to prevent persons associated with C from undertaking such conduct.

As indicated above, Parliament has provided guidance for commercial organizations

on what will amount to ‘adequate procedures’.29 What is ‘adequate’ will depend very
much, amongst other things, on the nature of the organization, on the kind of business
in which it is engaged (and how it does its business), and on where and with whom it
trades. To give one kind of contrast, the bureaucratic demands of adequate procedures
on a multinational firm engaged in the arms trade in a number of vulnerable countries
are likely to be heavy, whereas the demands on a UK-based window cleaner employing
only one family member are going to be all but non-existent. In 2018 the Serious Fraud
Office obtained its first conviction under s 7, in a contested case where the defendant

27
See e.g. https://www.sfo.gov.uk/download/airbus-se-deferred-prosecution-agreement-statement-of-
facts/ (last accessed 10/08/2021).
28
In practice, the offence under s 1 of the 2010 Act is likely to cover all instances of s 6. The purpose of s 6,
as a separate offence, is to mirror the language used in the OECD Anti-Bribery Convention, which has been
adopted in other jurisdictions. That will make it easier for UK courts to interpret s 6 in the light of bribery
law jurisprudence in those other jurisdictions.
29
<https://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf>, analysed by
Transparency International in 2010, <http://www.transparency.org.uk/publications/adequate-procedures-
checklist-pdf/#.WzfANdJKjIU>.

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 12 ashworth’s principles of criminal law

had pleaded that its procedures to prevent bribery were adequate, a claim rejected by
the jury. The managing director of Skansen Interior Ltd had made two payments—
bribes—totalling £10,000 to a Manchester property company, as part of an attempt to
secure a £6 million refurbishment contract. Skansen’s new CEO discovered the pay-
ments, fired the managing director, put in place an anti-bribery policy, informed the
authorities of what had happened, and assisted with the investigation.30 The company
was nonetheless charged with, and convicted of, failing to prevent bribery.31 The pros-
ecution was arguably harsh because, even though the case against Skansen was evi-
dentially strong, if a prosecution is undertaken even when a company has reformed
itself, disclosed its wrongdoing, and assisted the authorities then there seems to be
little incentive for other firms to be co-operative in this way, although evidence of such
actions may of course lead to a reduced sentence.32
A crucial element of the s 7 offence is the way in which, in virtue of s 8, it attributes
liability to the commercial organization (C) for the acts of persons (‘agents’)—includ-
ing corporate persons—who in fact engaged in the bribery for C’s benefit, while being
‘associated with’ C, albeit not as employees. An example would be where C (a UK-
based firm) sets up a subsidiary company (A) in a country with weak corruption con-
trols, or where regulators can be paid to ignore the subsidiary’s activity. The subsidiary
then pays bribes—perhaps in a third country—to secure contracts that will, in fact,
benefit C. In this way, C hopes to secure contracts through bribery, but without the
bribery being traced back to C in law. As a matter of general principle, in company law,
the acts of subsidiary companies are not attributable to the parent company,33 although
in some instances the courts will impose liability in tort on a parent company for the
acts of a subsidiary.34 Section 8(4) seeks to ensure that, when in reality the subsidiary is
acting to benefit the parent company through corruption, the criminal consequences
are visited on the parent company (C).35 In 2016, the first ever conviction under s 7 was
obtained by the Serious Fraud Office against Sweett Group (PLC).36 Sweett’s Middle
Eastern subsidiary, CSI, made corrupt payments to Khaled Al Badie, a senior board
member of Al Ain Ahlia Insurance (AAAI), in order to secure a contract relating to the
building of a £63 million hotel in Dubai.37

30
See https://publications.parliament.uk/pa/ld201719/ldselect/ldbribact/303/30309.htm, paras 218–226.
31
The managing director, Banks, was subsequently convicted of bribery and sentenced to 12 months’
imprisonment, and was disqualified from acting as a company director for six years: <https://www.cps.gov.
uk/cps/news/company-directors-jailed-bribery>.
32
This was, though, an unusual case, because Skansen was a dormant company with no assets. It could
not, thus, pay a fine as part of an agreement to avoid prosecution, and indeed, following conviction, was
given an absolute discharge by the judge.
33
Adams v Cape Industries [1990] Ch 433.
34
HRH Emere Godwin Bebe Okpabi & Ors v Royal Dutch Shell Plc & Anor [2017] EWHC 89 (TCC).
35
For more detailed analysis, see Jeremy Horder and Gabriele Watts, ‘The Scope of Liability for Failure to
Prevent Economic Crime’ [2021] Crime LR 851.
36
<https://www.sfo.gov.uk/cases/sweett-group/>.
37
https://www.sfo.gov.uk/2016/02/19/sweett-group-plc-sentenced-and-ordered-to-pay-2-3-million-after-
bribery-act-conviction/ (last accessed 15/12/2021).

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 bribery and money laundering 13

Since then, a number of Deferred Prosecution Agreements have been reached be-
tween the Serious Fraud Office and companies admitted liability under s 7. For ex-
ample, in 2020, a settlement was reached with Airbus SE under which it agreed to pay a
fine and costs amounting to €991m in the UK, and in total €3.6bn worldwide. This was
the world’s largest global resolution for bribery, involving authorities in France and the
United States, following allegations that the company had used external consultants
to bribe customers to buy its civilian and military aircrafts. The conduct covered by
the UK agreement took place across five jurisdictions: Sri Lanka, Malaysia, Indonesia,
Taiwan, and Ghana, between 2011 and 2015. In spite of the extent and gravity of the
company’s wrongdoing, a settlement was approved by a High Court Judge in the light
of the full cooperation given by Airbus SE in the investigation, and the programme
of corporate reform and compliance put in place by new leadership at the top of the
company.38 That might sound like an ideal outcome for all concerned. However, there
is a considerable irony about the success of the Serious Fraud Office in concluding
Deferred Prosecution Agreements relation to s 7 offending. This is that the strict liabil-
ity ‘failure to prevent’ offence was designed to make prosecution of companies easier,
because prosecutors would not have to satisfy the identification doctrine requiring
proof that a director (or equivalent person) committed an offence that involved a fault
element. Insofar as the introduction of the ‘failure to prevent’ offence has not led to
completed prosecutions for bribery that would have failed before 2010 because of the
need to prove high-level fault, then it cannot be counted as a success.

1 4 . 2 M ON E Y L AU N DE R I N G

In order for their activities to produce stable profits, criminals must manage their as-
sets, just like legitimate asset-holders. A key aim will be to give the appearance that
money in fact derived from criminal activity—trafficking, fraud, bribery, and so on—is
legitimately owned, or at least to ensure that the illegitimacy of the holding cannot be
proved. The process engaged in to achieve this is known as the money laundering ‘cycle’
(placement, layering, and integration39). The Home Office estimates that the impact
of money laundering on the UK economy is likely to exceed £90 billion, yet in 2016,
only 1,435 people were convicted of money laundering offences.40 In spite of efforts to
freeze or to recover them, the value of assets frozen or recovered lags well behind the
total value of laundered assets in the economy. The recently established Joint Money
Laundering Intelligence Taskforce contributed to more than 1,000 bank-led investiga-
tions into suspicious customers, and to the closure of more than 450 suspicious bank
accounts, in 2016–17, but it enabled the recovery of only £7 million in criminal funds.41
38
https://www.sfo.gov.uk/download/airbus-se-deferred-prosecution-agreement-statement-of-facts/ (last
accessed 10/08/2021).
39
<http://www.unodc.org/unodc/en/money-laundring/laundrycycle.html>.
40
<https://homeofficemedia.blog.gov.uk/2017/12/11/economic-crime-factsheet/>.
41
<https://homeofficemedia.blog.gov.uk/2017/12/11/economic-crime-factsheet/>. Although, under the
Proceeds of Crime Act 2002, law enforcement agencies confiscated £201 million from criminals during
2016/17.

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 14 ashworth’s principles of criminal law

The ability to move the proceeds of crime—such as fraud, bribery, and drug-related
offences—into the legitimate economy more or less undetected provides an undoubted
incentive to invest time and effort into the development of large-scale, long-term crim-
inal activity. In turn, the flourishing of such criminal activity may pose a threat to vul-
nerable economies, to the integrity of public officials, and in some instances to people’s
physical safety. Legislation in this area has three principal aims: to recover the proceeds
of crime, to establish appropriate regulatory systems to detect and deter money laun-
dering, and to punish activity that involves engaging in, or assisting or encouraging,
money laundering. We will be concerned mainly with the last of these, the role of the
criminal law, although this role is inextricably tied to the regulatory aims of the legisla-
tion.42 A controversial issue concerns the right balance to be struck in terms of focus
and prioritizing as between these three aims. Arguably, the criminal law should be
concerned solely or largely with those actively engaged in dishonest conduct associ-
ated with money laundering. Those whose culpability (if any) lies solely in a failure to
set up adequate systems to detect and deter money laundering, or in a simple failure to
provide information of use to law enforcement authorities, should perhaps face regula-
tory but not criminal sanctions. Currently, the UK applies the criminal law to the latter
as well as to the former.
The main criminal offences connected to money laundering are to be found in the
Proceeds of Crime Act 2002, the inspiration for which is to be found in a series of Eu-
ropean Directives seeking to establish a common European approach to the problem.43
The 2002 Act introduces a draconian regime designed not only to provide as a matter
of civil law for, among other things, asset recovery and the prevention of the move-
ment of criminal assets (restraint proceedings) but also to punish and deter those who
engage in and assist money laundering. Here, the focus is on some of the key criminal
law aspects of the legislation. As we saw in the discussion of bribery and corporate
activity, a key question that arises is whether the criminal law or regulatory law is a
more appropriate way to address some of the problems that arise. That is because the
criminal part of legislation targets not only those seeking to launder money but also,
for example, banks which open accounts that are then used for money laundering.44
The key sections of the 2002 Act are ss 327–9, which create the money laundering
offences. These are serious offences, carrying a maximum sentence of 14 years’ impris-
onment. They must be read in conjunction with s 340 that defines ‘criminal conduct’
and ‘criminal property’ for the purposes of applying ss 327–9. To begin with, under s
340, ‘criminal conduct’ is conduct that is an offence under UK law, or—where the con-
duct occurs overseas—would be considered an offence under UK law had it occurred

42
L. Campbell, ‘Dirty Cash (Money Talks): 4AMLD and the Money Laundering Regulations 2017’ (2018)
Criminal Law Review 102. See also the Criminal Finances Act 2017.
43
M. Levi, ‘Money Laundering and Its Regulation’ (2002) Annals of the American Academy of Political
and Social Science 181.
44
S. Kebbell, ‘“Everybody’s Looking at Nothing”—The Legal Profession and the Disproportionate Burden
of the Proceeds of Crime Act 2002’ [2017] Crim LR 741.

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 bribery and money laundering 15

here.45 This provision is one of those designed to ensure that the 2002 Act is not un-
duly hampered by jurisdictional limitations. Criminal conduct is sometimes called the
‘predicate offence’, to distinguish it from the money laundering offences created by the
2002 Act. It is not necessary for the prosecution to prove that any particular crime, or
type of crime, was committed constituting the ‘criminal conduct’ (predicate offence).
It will be sufficient for the prosecution to introduce evidence of circumstances in
which the property was handled capable of giving rise to an irresistible inference that
the property in question was derived from criminal conduct (whether or not there has
been a conviction for the criminal conduct in question).46 It is not necessary to show
that the property was the derived from the commission of a particular crime.47 So, for
example, if D is caught in possession of £2 million in cash and a sawn-off shotgun, the
irresistible inference may very well be that D has acquired property that is a benefit
from ‘criminal’ conduct.48 However, it would be open to D to claim that, for example,
the cash was legitimately acquired, even though D admits that it was to be used to
commit an offence in the future—for then D’s possession of the cash is not based on or
connected to prior criminal conduct.49
Second, under s 340, ‘criminal property’ is property that constitutes or represents
(directly or indirectly) a benefit50 from ‘criminal conduct’, and where the suspected
offender knows or suspects that this is the case. Unusually, thus, a circumstance ele-
ment of the crime—that the property is criminal property—is defined in terms of a
combination of an external element (the property must be the product of crime) and
a fault element (the suspect’s knowledge or suspicion that this is the case). It follows
that D will not be guilty if he or she did not know or suspect that property was a ben-
efit from criminal conduct (when the fault element is missing), but D will also not be
guilty where—even if, for example, D acquires property strongly suspecting that it is
criminal—the property is not in fact a benefit from criminal conduct.51 By s 340(4), it
will not matter who carried out the criminal conduct or who benefited from it, though:
D may be guilty in handling the criminal property even though D does not him or

45
This is known as the ‘all crimes’ approach to money laundering, sometimes criticized for drawing too
much conduct within the scope of the money laundering net. By contrast, EU legislation focuses on serious
crimes as a basis for its money laundering provisions.
46
Anwoir [2008] EWCA Crim 1354; Crown Prosecution Service, https://www.cps.gov.uk/legal-guidance/
money-laundering-offences (last accessed 10/08/2021). The criminal conduct extends to D’s own conduct:
Greaves [2010] EWCA Crim 709. In other words, D need not be laundering money that is the proceeds of
someone else’s crime.
47
Anwoir [2008] EWCA Crim 1354.
48
See the discussion in D. Ormerod and K. Laird (eds), Smith and Hogan’s Criminal Law (14th edn, 2015),
1132–4.
49
See Geary [2010] EWCA Crim 1925.
50
Meaning that it was acquired as a result of or in connection with the criminal conduct. In that regard, it
will not matter how small or insignificant the sum or nature of the property is: there is no ‘de minimis’ prin-
ciple governing the legislation. For criticism, see House of Lords, EU Committee Report, July 2009, para 4.
51
R v Montila [2005] 1 WLR 3141. In such a case, D may still be guilty of an attempt to commit the of-
fence, contrary to the Criminal Attempts Act 1981.

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 16 ashworth’s principles of criminal law

herself benefit from the criminal conduct, and even though D has no connection with
or knowledge of the person who engaged in the criminal conduct (an example might
be one in which D finds a very large sum of money in a barrel abandoned on a beach).
The prosecution must prove that the property was already the product of criminal
activity at the time of any concealment, disguise, conversion, or transfer;52 however,
an arrangement made in advance of engaging in one of these acts to handle property
that is not yet criminal property (eg because it is yet to be stolen) will be covered if and
insofar as the property will be criminal property by the time the act of concealment etc
takes place.53
With that background in mind, we can turn to the offences created by ss 327–9.
Section 327 is concerned with the ‘concealing etc’ of criminal property:
(1) A person commits an offence if he—
(a) conceals criminal property;
(b) disguises criminal property;
(c) converts criminal property;
(d) transfers criminal property;
(e) removes criminal property from England and Wales or from Scotland or from
Northern Ireland.

Thus defined, the offence includes common or garden handling of stolen goods: an
example is Thompson, in which D sold a stolen train set for £180 when its true value
was £3,500.54 However, it extends beyond such cases to include, for example, allowing
one’s bank account to be used to pay in the proceeds of fraud.55 Section 329 creates an
allied offence in which the external element is complete when D ‘acquires . . . uses . . .
[or] . . . has possession of ’ criminal property.56 The offence is wide enough to cover
anyone who themselves steals money by one of the specified means, making them
a thief and a money launderer at the same time. Section 328 creates a very wide of-
fence of entering into or becoming concerned in an arrangement which D ‘knows or
suspects facilitates . . . the acquisition, retention, use or control of criminal property
by or on behalf of another person’. The Crown Prosecution Service regards the offence
contrary to s 328 as targeted principally at the so-called layering and integration stages
of money laundering.57 Bearing in mind the definition of criminal property in s 340,
ss 327–9 require the prosecution to prove that D engaged in one or more of the acts
mentioned, ‘knowing or suspecting’ that relevant circumstance element obtains. So,

52
Haque [2019] EWCA Crim 1028. 53
GH [2015] UKSC 24.
54
[2010] EWCA Crim 1216. 55
Fazal [2009] EWCA Crim 1697.
56
It should be noted that this offence has a defence not available in respect of the other offences, namely
that the property was acquired in exchange for adequate consideration.
57
See n 10; Crown Prosecution Service, <https://www.cps.gov.uk/legal-guidance/proceeds-crime-act-
2002-part-7-money-laundering-offences>: ‘This is the offence which will often be apt for the prosecution of
those who launder on behalf of others. It can catch persons who work in financial or credit institutions, ac-
countants etc, who in the course of their work facilitate money laundering by or on behalf of other persons.’

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 bribery and money laundering 17

for example, in the s 327 offence, D must be shown to have known or suspected that
the property constitutes or represented the benefit of criminal conduct when he or she
did one of the acts mentioned in s 327(1)(a)–(e). Similarly, in s 328, D must be shown
to have known or suspected that the arrangement facilitated the acquisition and so on
of criminal property when entering into or becoming concerned in that arrangement.
The inclusion of cases not only in which D knows or believes but also in which D
merely ‘suspects’ that the relevant circumstance element obtains (eg that the property
in question constitutes or represents the benefit of criminal conduct), at the time of the
relevant act, casts the net of liability very wide indeed. The Court of Appeal has held
that a ‘suspicion’, for the purposes of this offence, need be neither ‘clear’ nor ‘firmly
grounded and targeted on specific facts’, nor ‘based upon reasonable grounds’.58 Suspi-
cion need be no more than ‘a state of conjecture or surmise where proof is lacking’.59
Suppose that D1 lives next door to D2. D1 knows that D2 engages from time to time in
the theft of household goods. On D1’s birthday, D2 calls round to give D2 an electric
clock radio as a present. Reluctant to ask any questions about the possible origins of the
gift, D1 accepts it. D1 will be guilty of the s 329 offence if the clock is in fact criminal
property (unless one of the specialized defences in the 2002 Act applies).
As indicated above, the offences under ss 327–9 bear some similarity to the offence
of handling stolen goods, contrary to s 22 of the Theft Act 1968.60 However, the latter
offence requires proof that D knew or believed that the goods were stolen at the time
of handling. Proof that D suspected that the goods handled were stolen is not enough.
Further, under s 22 of the 1968 Act, even proof that D knew or believed that the goods
were stolen at the time of handling is not sufficient. The prosecution must prove that D
was dishonest as well. There is no evidence that the wider concept of fault—embracing
suspicion alongside knowledge—gives law enforcement under ss 327–9 significant ca-
pabilities that would be lacking, if proof was required of knowledge or belief (excluding
mere suspicion). Furthermore, the absence of a dishonesty requirement means that the
offences under ss 327–9 can in some circumstances, in effect, be committed through
ignorance or negligence. Suppose that, in a variation on the example just given, D1
recognizes that the clock D2 offers him as a present belongs to V, and knows that D2
has stolen it; but because V is a great friend of D1 and has many such clocks, D1 thinks
that V would welcome D1 having the clock as a birthday present. In this example, D1
would be able to deny acting ‘dishonestly’ if charged with handling the stolen clock, but
would have no such defence to a charge contrary to s 329.
There is an important defence to the offences created by ss 327–9 under s 338.61 This
is where D makes an ‘authorized disclosure’ of his or her acts to nominated officials.
58
R v Silva [2006] EWCA Crim 1654, at 16.
59
Hussein v Chang Fook Kam [1970] AC 942, at 948, cited by D. Ormerod and K. Laird (eds), n 48, 1136–7.
60
Although the regulatory orientation of the former, as compared with the latter, is highlighted by the
ability of the Financial Conduct Authority to bring prosecutions for offences against sections 327–9 but not
for handling: R v Rollins [2010] UKSC 39.
61
See further Bowman v Fels [2005] 1 WLR 3083. A further defence was created by the Serious Organised
Crime and Police Act 2005, to cover the situation in which D knows or reasonably believes that the allegedly
criminal conduct occurred in a country where it was not a criminal offence to engage in it.

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 18 ashworth’s principles of criminal law

The defence may apply (a) before D engages in one of the prohibited acts; (b) when D
has innocently engaged in one of the acts prohibited by ss 327–9, but then becomes
suspicious and on his own initiative makes a disclosure as soon as practicable; or (c)
after D has engaged in the prohibited acts with the fault element, but has a reason-
able excuse for having failed to disclose beforehand, and then voluntarily discloses as
soon as practicable. The regulatory cast to this defence is strengthened by the creation
of an offence, in s 339, of failing with reasonable excuse to make a ‘disclosure’ in a
specified statutory form. This defence is a nod towards the fact that many organiza-
tions—law firms, banks, and other commercial organizations—will not infrequently
be confronted with transactions about which they are (at the very least) suspicious. In
that regard, one possible law enforcement strategy would have been to rely solely or
largely on the threat of prosecution of such organizations, to deter them from having
anything to do with such transactions. The defence in s 338 introduces a more sophis-
ticated approach. It makes it possible to shape prosecution policy through a strategy
of deterrence of would-be money launderers themselves, by providing an incentive
to organizations to expose the potential launderers’ activities to the authorities.62 The
approach is buttressed by the offences in ss 333 and 338 of ‘tipping off ’ a suspected
money launderer about a disclosure to the authorities. The importance of this strategy
is emphasized in a recent report highlighting the role of professional advisers in money
laundering:
The substantial risk from high end money laundering . . . typically involv[es] the laun-
dering of major frauds, corruption or tax evasion through exploitation of financial and
other professional services . . . Professional services are a crucial gateway for criminals
looking to disguise the origin of their funds.63

In that regard, s 330 of the 2002 Act also makes it a serious offence for any person to
fail to disclose the identity of a suspected money launderer, or the whereabouts of
laundered property, if the information comes to them in the course of working in the
regulated (broadly, financial) sector.64 To make such a failure subject to severe criminal
sanctions rather than simply regulatory penalties (as in many other countries) is a
draconian step. It is designed, in the words of the Crown Prosecution Service, ‘to em-
phasise the importance of proper systems of reporting and control’, but that is normally
the kind of goal achieved through regulation rather than though the threat of criminal
sanctions.65
In virtue of s 330(2), the offence is only committed where the information comes
to D and he or she ‘(a) knows or suspects, or (b) has reasonable grounds for knowing

62
However, it should be noted that the making of the disclosure is voluntary. A person could decide to
run the risk of non-disclosure.
63
HM Treasury, ‘National Risk Assessment of Money Laundering and Terrorist Financing 2017’, <https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655198/Nation-
al_risk_assessment_of_money_laundering_and_terrorist_financing_2017_pdf_web.pdf>, p 5.
64
The offence is punishable by up to five years’ imprisonment.
65
Crown Prosecution Service, ‘Proceeds of Crime Act 2002 Part 7: Money Laundering Offences’, <https://
www.cps.gov.uk/legal-guidance/proceeds-crime-act-2002-part-7-money-laundering-offences>.

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 bribery and money ­l aundering 19

or suspecting, that another person is engaged in money laundering’. So, a failure to

report is subject to criminal sanctions even if the person failing to make the disclosure
had no knowledge or suspicion that money laundering might be taking place; it is
enough that there were reasonable grounds for knowing or suspecting this, making
the offence one that can be committed by negligence.66 Unsurprisingly, thus, many
regulated institutions have taken a safety-first approach, making ‘suspicious activity
reports’ (‘SARs’) whenever there might be the slightest doubt about the integrity of
a transaction.67 However, such institutions may find themselves on the horns of a di-
lemma when it comes to information provision. It is an offence to ‘tip off ’ someone
suspected of money laundering that a disclosure to the authorities has been made or
that an investigation is in train (s 333), punishable by up to five years’ imprisonment.
Further, under the Money Laundering Regulations 2017, if, in purported compliance
with the regulatory obligations imposed by those regulations, a regulated institution
knowingly or recklessly provides information that is false or misleading in a material
particular, an offence is also committed, which is punishable by up to two years’ im-
prisonment (s 88).
The UK Financial Intelligence Unit received 354,186 SARs in 2013–14 and 419,451
in 2015–16.68 Finding a criminal ‘needle’ in such an information ‘haystack’ inevita-
bly poses considerable challenges. In 2016, only 1,435 individuals were convicted of
money laundering in the UK.69 There are nearly ten times as many prosecutions for
bicycle theft. Further, the extent of confiscation of the proceeds of crime by national
authorities remains disappointing. The National Audit Office reported in 2015–16 that
enforcement agencies collected £155 million from confiscation orders in 2014–15, but
the cost of administering the process was itself more than £100 million. That compares
with the estimated figure of £100 billion in assets thought to be laundered through the
UK each year, a figure large than the GDP of more than 130 countries worldwide.70
A more sophisticated regulatory, as opposed to purely criminal law, approach to the
problem may be required. That would involve more systematic collaboration between
regulators and the regulated industry, aimed at encouraging the disruption of money
laundering activity in the most serious cases, with the threat of sanctions playing only
a background role.

66
Williams et al, Millington and Sutherland Williams on the Proceeds of Crime (5th edn, 2018), at para
21.20. See the decision of the Supreme Court, relating to similar wording governing terrorist funding, in R v
Lane; R v Letts [2018] UKSC 36.
67
Williams et al, n 66, at para 21.05.
68
That contrasts with the numbers in other EU countries, where there is a focus on serious crimes: Ger-
many, 9,080 SARs in 2007; Italy, 12,894 SARs in 2008; Spain, 2,783 SARs in 2007.
69
HM Treasury, ‘National Risk Assessment of Money Laundering and Terrorist Financing 2017’, <https://
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655198/Na-
tional_risk_assessment_of_money_laundering_and_terrorist_financing_2017_pdf_web.pdf>, para 1.22. It
should be noted that criminals may also be charged and convicted under the relevant predicate offence.
70
Williams et al, n 66, Preface.

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 20 ashworth’s principles of criminal law

Further Reading
Nicholas Cropp, ‘The Bribery Act 2010: Jeremy Horder and Gabriele Watts, ‘The
Part Four: A Comparison with the Foreign Scope of Liability for Failure to Prevent
Corrupt Practices Act: Nuance v. Nous’ Economic Crime’ [2021] Crim LR 851
[2011] Crim LR 122. S. Kebbell, ‘“Everybody’s Looking at
Stephen Gentle, ‘The Bribery Act 2010: Part Nothing”—The Legal Profession and the
Two: The Corporate Offence’ [2011] Crim Disproportionate Burden of the Proceeds
LR 101. of Crime Act 2002’ [2017] Crim LR 741.

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