The sentencing of Romy Andrianarisoa, the first ever foreign public official to be convicted under the Bribery Act 2010, provides important takeaways.

On 10 May 2024, Romy Andrianarisoa was sentenced to three-and-a-half years’ imprisonment for soliciting bribes contrary to Section 2 of the Bribery Act 2010 (Bribery Act). Andrianarisoa, former Chief of Staff to President Andry Rajoelina of Madagascar, requested substantial cash payments in exchange for helping UK-headquartered Gemfields Group Ltd (Gemfields) secure mining rights in the country. Her associate, French national Philippe Tabuteau, was also handed a 27-month sentence for his role in the scheme.

Andrianarisoa’s sentencing follows a rapid investigation by the International Corruption Unit (ICU) of the UK’s National Crime Agency (NCA), making effective use of covert tactics including the deployment of an undercover officer. Andrianarisoa is the first ever foreign public official to be convicted under the Bribery Act, and the NCA has expressed its hope this case will serve as a warning to other “greedy and unscrupulous” office-holders contemplating seeking bribes from UK persons or entities.

There are important takeaways for corporates which, like Gemfields, are approached for bribes and may need to consider making a report to the NCA.

Background

In early 2023, Andrianarisoa approached Gemfields, which was seeking to expand into Madagascar, and offered assistance with securing mining rights on the island. Tabuteau also took part in these early talks, and described himself as having no formal role in government but acting in a “private and personal capacity”. Andrianarisoa explained that she could leverage her “access” to the president to obtain approval for a lucrative joint venture with the Madagascan government in exchange for cash payments at certain milestones. This included a goodwill payment of CHF 10,000 for each of herself and Tabuteau on signing an agreement for their services with Gemfields, followed by two instalments of CHF 125,000. The pair also sought a 5% stake in the proposed joint venture.

Gemfields reported its concerns to the NCA, which launched an investigation and deployed an undercover officer (codenamed “Charles”) to pose as a Gemfields consultant. Charles attended a meeting with Andrianarisoa at a London hotel where she explained “there is my work in terms of supporting the government and the country […], but there is also my work of, you know, earning my life”.[1] On a separate occasion, Andrianarisoa stressed, more pointedly, that she needed “to be paid”. The prosecution’s case was that these and other comments left no room for doubt that Andrianarisoa knew she was soliciting bribes.

Andrianarisoa and Tabuteau were arrested on 10 August 2023. Tabuteau pleaded guilty to soliciting bribes in September 2023. Andrianarisoa denied the allegations but was convicted in February 2024 following a trial at Southwark Crown Court.

Undercover and Underutilised?

An undercover officer was put to effective use in this case and there are suggestions they might be a more common feature of NCA investigations going forward. Deputy Head of the ICU, David Liebscher recently described a not-too-distant future “where every overseas PEP [politically exposed person] is wondering whether they’re talking to an undercover officer”.

On the other hand, undercover officers will be inevitably harder to deploy in larger and more complex cases, especially if the NCA has not been tipped off about potential criminal conduct. In utilising undercover officers, the NCA has to toe a delicate line. Strictly speaking, there is no defence of entrapment under English law; however, officers cannot induce a person to commit a crime they otherwise did not intend to commit. Strict compliance with the provisions of the Regulation of Investigatory Powers Act 2000 governing covert intelligence is essential for any evidence gathered to be admissible in subsequent criminal proceedings.

Another notable aspect of the Andrianarisoa case was the cross-institutional cooperation, particularly the early involvement of the Crown Prosecution Service (CPS) “to put together the strongest possible case in court”. The case took less than 200 days from arrest to conviction and the jury returned a unanimous verdict in only two hours. This collaborative approach between the NCA and CPS underscores the importance of a united front in the legal battle against corruption, and may foreshadow an increased focus on inter-agency cooperation moving forward.

Takeaways

1. Don’t lose sight of other enforcement agencies: while the market focuses on increased enforcement by the UK Serious Fraud Office under new Director Nick Ephgrave, the NCA — and, in particular, the ICU — also has the appetite to progress investigations at pace and use the full range of powers at its disposal to do so. Andrianarisoa is just one example; other PEPs currently of interest to the NCA include Peter Virdee (also known as Hardeep Singh), director of renewable energy company PV Energy; and Baroness Michelle Mone, an entrepreneur and member of the UK House of Lords.
2. It isn’t just individuals: corporate involvement with an individual or events subject to investigation could lead to reputational damage, market value erosion, exclusion from competing for public contracts, and increased shareholder activism. Investigators may suspect that a single instance of wrongdoing is just the tip of the iceberg for a broader lack of robust systems and controls. The Andrianarisoa case is a timely reminder to corporates to review their internal policies, procedures, and training programmes on bribery and other economic crimes.
3. Reporting can be a complex matter: Gemfields was lauded for raising its suspicions promptly and for fully cooperating with the NCA’s investigation. There is no statutory duty to report suspected bribery, and the decision whether to report, and when, is complex. Companies need to navigate a delicate balance between raising concerns with an enforcement agency quickly, and carrying out proportionate internal investigation to establish the key facts and consider how to mitigate any risks.

This post was prepared with the assistance of Mark Shakkour in the London office of Latham & Watkins.

[1] https://www.nationalcrimeagency.gov.uk/news/audio-released-as-former-chief-of-staff-to-madagascan-president-sentenced