The UK Bribery Act is still on the books – and there is very little enforcement action to report. Instead, we are treated to new personnel, policies and practices surrounding the UK Bribery Act, which so far has not amounted to a hill of beans.
I do not mean to denigrate the UK’s anti-corruption enforcement effort. All of the pomp and circumstance surrounding the UK Bribery Act has been just that – pomp and circumstance.
The most significant development has been the appointment of David Green to take over for Richard Alderman. Mr. Green has adopted a more traditional prosecutorial approach to enforcement. He rescinded prior guidance relating to facilitation payments, corporate hospitality and self-reporting.
On the issue of self-reporting, Mr. Green made it clear that the Serious Fraud Office would not guarantee a civil resolution for companies that self report. Indeed, the new policy statement confirms there will be no presumption in favor of civil settlements for companies that self report.
Mr. Green has promised tough prosecutions of companies engaged in foreign bribery. He appears to be more comfortable bringing cases as a means of “guidance” instead of issuing proclamations of prosecutorial discretion as to what violates the law and what does not.
For Mr. Green and the UK Bribery Act, the proof will be in the pudding. So far, the SFO bungled a major investigation and prosecution of the Icelandic bank, Kaupthing, and two major customers of the bank. Late last year, Rolls Royce disclosed it was being investigated by the SFO relating to bribes paid in China and Indonesia for valuable contracts. Assuming the SFO can bring this matter to a successful conclusion; this could be an important step in establishing the SFO’s credentials in UK Bribery Act enforcement.
In May 2012, the UK Ministry of Justice proposed the introduction of Deferred Prosecution Agreements (DPAs) as an additional tool for prosecutors in economic crime cases. The government has concluded that DPAs would be an effective tool in the arsenal against corporate crime. Proposed legislation, however, to enact the law needed to authorize DPAs is not expected to be considered until later this year.
The SFO continues to be overshadowed by the Financial Services Authority which has focused on bribery under its mandate to ensure adequate internal controls. The FSA has brought two significant enforcement actions against Aon insurance company and Willis.
In addition to these two cases, the FSA issued a damning report against the investment bank industry claiming that anti-corruption and internal controls were weak and needed improvement. The FSA identified specific weaknesses in a number of internal controls after reviewing fifteen investment bank firms, eight of which were global investment banks.
In the face of a lackluster enforcement record, companies are in a quandary. Should they comply with the full force of the UK Bribery Act while there is little risk of enforcement? Does it make sense to build a compliance program knowing that that the full scope of the program will not be necessary until at least several years down the road?