U.K. Bribery Act Review Puts Deferred Prosecution Agreements Under Scrutiny
27 8월 2018 - 6:59PM
Dow Jones News
By Mara Lemos Stein
Lawmakers in the U.K. are conducting a formal review of the
Bribery Act of 2010, with plans to examine the impact of deferred
prosecution agreements on corporate conduct.
The absence of prosecution of individuals in bribery cases, and
the lack of transparency about prosecutors' decision-making process
on whether to offer a DPA, are among the concerns raised so far in
the review.
A deferred prosecution agreement is an agreement between a
prosecutor and an organization to suspend prosecution for a period
of time if certain conditions are met. They usually involve
financial penalties, disgorgement and implementation of compliance
programs.
The Serious Fraud Office, a special prosecutor with
investigative powers covering England, Wales and Northern Ireland,
has entered into only four DPAs since the introduction of the
agreements in 2014. These were with Standard Bank, with a company
that prosecutors haven't identified because of pending criminal
proceedings, with Rolls-Royce PLC, and with Tesco Stores Ltd.
Although the sample of DPAs is small, lawyers and nongovernment
organizations said that the tool and the Bribery Act have helped
raise corporate awareness about the risks of engaging in corrupt
practices.
"The Bribery Act has had a significant impact on U.K. companies
and on businesses around the world," said Louise Delahunty, a
partner at law firm Cooley LLP, in an email. The legislation has
driven companies to implement more robust antibribery compliance
systems and improve their governance practices, she said.
But questions remain about the absence of prosecution of
individuals in bribery cases, especially in those where the
companies reached a DPA, say lawyers and others who study
policy.
"It is notable that, so far, no individual connected to a
published DPA has been prosecuted," wrote the Law Society, the City
of London Law Society and the Fraud Lawyers Association in their
joint submission on the review.
The absence of prosecution of senior executives in high-profile
bribery cases settled under deferred prosecution erodes public
confidence in the process, said Susan Hawley, director of policy at
Corruption Watch, an advocacy group focused on exposing corruption,
during oral evidence to the committee last month.
Despite the guidance available from the prosecutors on the DPA
process, lawmakers and policy watchers said the SFO needs to be
more transparent about its process on offering an agreement.
Transparency is crucial to encourage companies to disclose serious
misconduct, they said.
"The process behind the investigation and the discussions on
whether to proceed down that [DPA] path are too opaque," said
Kathryn Higgs, a director of Transparency International, during an
oral evidence session last month. "The community and the business
community cannot see what consideration is going into this and
whether it is something they would consider."
The review of the Bribery Act is part of a common practice in
U.K. policy-making, which calls for a post-legislative analysis if
the law constitutes a significant change of policy. The committee
is looking to measure the effectiveness of the act since its
implementation, and was instructed to include a review of DPAs as a
tool to address bribery.
The committee received 41 written submissions to its inquiry,
and will hold open sessions to collect views from executives next
month. The general counsel of BAE Systems PLC and of Rolls-Royce
are scheduled to provide oral evidence about DPAs on Sept. 11.
Write to Mara Lemos Stein at mara.lemos-stein@wsj.com
(END) Dow Jones Newswires
August 27, 2018 05:44 ET (09:44 GMT)
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