David Green: UK DPAs aren't ‘cosy’ agreements
Tuesday, March 13, 2018 at 8:08AM
Gareth Thomas in David Green QC, Serious Fraud Office, deferred prosecution agreements

Anti-corruption is and will remain firmly on the agenda, said UK Serious Fraud Office director David Green at a recent GoodCorporation business ethics debate at the House of Lords in London.

Endorsing the Kofi Annan description of corruption as an "insidious plague" that undermines the rule of law and distorts the market, Green urged regulators to turn a deaf ear to pleas that bribes are the price for doing business in certain parts of the world.

“Bribery is not a necessary evil in the marketplace. Business must accept that there may be some jurisdictions in which business cannot be done.” Green said.

Active enforcement will continue to be a focus for the SFO, which has access to “blockbuster” funding from the UK Treasury to support major investigations.

Businesses were urged to report any discovery of corrupt practices. Failure to do so would prevent access to a Deferred Prosecution Agreement (DPA). UK DPAs are not some form of "cosy agreement" between the prosecuting and defense counsel, Green said. They must be argued before and approved by a judge.

"Damascene conversions" will not be acceptable to the SFO; self-reporting is and will remain an essential precondition of a DPA.

For UK-based companies, the Bribery Act has clearly had a significant impact, leading to a considerable investment in and improvement of the systems and processes to prevent corruption.

Concerns raised by business representatives included that they feel “over a barrel;” required to report rather than being given the time to investigate internally to ascertain whether or not there is a case to answer. Guilty or innocent, once under investigation businesses are likely to see a negative impact on share price, so for many, reporting may not be considered in the company’s best interests.

There is also a concern that reporting will put the senior executive at risk of criminal prosecution. Despite the mitigation that DPAs offer, many legal teams will struggle to persuade a board to report and consequently put themselves at personal risk. It was suggested that extending DPAs to individuals could therefore have a significant impact on the willingness of companies to self-report.

The significant efforts of the SFO to establish a clearer and more consistent framework for the prosecution of corruption were welcomed. This is evidently the direction of travel for the SFO and despite the challenges that implementing effective anti-corruption procedures may pose, their approach is likely to benefit those companies determined to stamp out corruption.


Gareth Thomas is a director of GoodCorporation. He leads the firm's work in anti-corruption and data protection. He's a graduate of the London School of Economics and has a PhD in economic geography from Kings College London. GoodCorporation offers a range of corporate responsibility assessments and consultancy services, covering ethical management practices, anti-bribery & corruption, code of conduct audits, due diligence of intermediaries, mystery customer reviews, ethics training and a range of additional corporate responsibility services.

Article originally appeared on The FCPA Blog (http://www.fcpablog.com/).
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