Following the recently published review by the SFO of its enforcement policy in a number of areas with regard to corporates, it is instructive to consider the approach of the US DOJ as articulated in its Resource Guide to the US FCPA.
The resolution of cases involving corporates is guided by the Principles of Federal Prosecution of Business Organisations, set out in the U.S. Attorney’s Manual.
This recognises that the resolution of cases by means other than indictment, including non-prosecution and deferred prosecution agreements, may be appropriate in certain circumstances.
Nine factors are identified as being relevant to such a determination:
- the nature and seriousness of the offence;
- the pervasiveness of wrongdoing within the corporation, including management involvement;
- the corporation’s history of similar misconduct;
- the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents;
- the existence and effectiveness of the corporation’s pre-existing compliance programme
- the corporation’s remedial actions;
- collateral consequences;
- the adequacy of the prosecution of responsible individuals;
- the adequacy of remedies such as civil or regulatory enforcement actions
In deciding what, if any, action to take, both the DOJ and the SEC place a high premium on Self-reporting:
- Remedial action
- Effectiveness of a company’s pre-discovery compliance programme
Most, if not all, of these considerations will be relevant factors also for the SFO, when considering whether to pursue a criminal investigation in any given case.
The clear articulation of these matters in the Resource Guide provides a useful template for use by those corporates which might be exposed to the UK Bribery Act.