Sally Clark

The global mining giant Glencore was back in the news last week with the announcement from the Serious Fraud Office (SFO) that it has charged five of its executives, who are now due to appear in court on 10 September, with bribery offences dating back to 2007.

These events follow the passing of the Bribery Act 2010, which came into force in 2011. The SFO investigation began in 2019, and led to Glencore pleading guilty in 2022 to various offences under the Act arising from the management of its West Africa Desk between 2012 and 2014. During those proceedings, 11 individuals were granted anonymity.

When Glencore went through its initial court proceedings in 2022, the SFO advised that charging decisions in respect of the individuals facing justice were anticipated in April 2023.

It is understood that the reason it has taken until August 2024 to actually levy these charges is because of additional evidence which came to light. It is also believed that two further individuals have been invited to attend the forthcoming court proceedings in September, but because they are currently outside the jurisdiction, they cannot be charged unless they volunteer to appear.

This is the latest in a series of court cases against Glencore across the globe. The company has paid fines in the US, Brazil and most recently Switzerland as a result of its conduct in various African nations. Only last week, Swiss prosecutors ordered Glencore to pay separate fines of $2.4 million and £190m in compensation resulting from allegations of bribery in the Congo in 2011. The allegations were akin to the Section 7 “failure to prevent” offence regularly seen in the UK in corporate crime cases. While Glencore did not admit these allegations, the company agreed not to appeal the penalty order.

At a time when public attention continues to focus on the accountability of individuals running large corporations, this charging decision is a timely reminder that directors and office bearers cannot hide behind a corporate veil.

Charges against individuals for bribery offences are rare, but the fact the SFO has taken this action serves as a warning that individuals behind the companies can and will be pursued regardless of the consequences for their corporation.

It’s also a timely reminder of the extra-territorial reach of the Bribery Act 2010 and that law enforcement has a long memory which can reach far back in time.

Sally Clark is of counsel at CMS