UKBA - Frequently Asked Questions
July 29, 2016
By Victoria Murphy and Oliver Brooks
This week, for our final blog of this series, we answer some of the questions recently posed by you, our readers, and by our clients in relation to the UK Bribery Act 2010 (UKBA):
Q: In the event that bribery is suspected, what is best practice?
As a starting point, the approach to be adopted is fact specific and it is important that you obtain legal advice as soon as possible to understand your legal, regulatory and reputational risks. A Deferred Prosecution Agreement (DPA) offers a number of benefits to a company and we have seen to date that early co-operation with the Serious Fraud Office (SFO) is key to a corporate being deemed suitable for a DPA. It is therefore our view that fundamental to achieving the best possible outcome on discovery of bribery is the need to engage a law firm promptly in order to carry out an investigation and to obtain advice as to whether a self-report to the SFO is appropriate.
Q: Is there adequate financial incentive to self-report a bribery offence in the hope of entering into a DPA against merely pleading guilty to a charge for the same offence?
Again, the answer to this question very much depends on the facts and the decision to enter into a DPA should not exclusively be based on financial incentive.
The Code of Practice concerning DPAs in the UK, jointly published by the CPS and SFO, dictates that financial penalties should broadly reflect those handed down by the courts following a guilty plea, i.e. providing for a maximum one-third discount.
The bank subject to the first DPA was, in part, “rewarded” for its level of cooperation with the SFO. The terms of the agreement ensured that a one-third discount was applied on the level of the financial penalty imposed. However, onerous conditions were also imposed to ensure future co-operation with the SFO and compliance.
Consequently, there was much skepticism as to the true incentive for entering into DPAs versus pleading guilty when, some three months later, the first ever prosecution for bribery occurred and the exact same discount was applied in respect of the level of fine in that case.
Those concerns were seemingly addressed in the most recent DPA concerning the anonymised ‘XYZ Limited’. That company was granted a substantial discount of 50 percent in respect of its financial penalty owing to their proactive approach to engaging with the SFO and in order to encourage others to come forward upon discovery of bribery. This is a welcome decision for corporates, providing some additional comfort regarding the discount that could be offered under a DPA; but as we mentioned in our earlier blogs, further DPAs will be needed to afford greater clarity.
Q: To what extent could a company be liable for the same bribery offence in multiple jurisdictions, for example in the UK and US?
A strict interpretation of the UK law means that we believe it is unlikely that the same corporate would be tried for the same offence in this jurisdiction as well as in the US for two main reasons:
- Increased cooperation between law enforcement agencies globally - In the US, for example, and having spoken with DoJ representatives, a pragmatic view will usually be taken whereby if they are satisfied that any prosecution and/or settlement adequately provides justice, they will stand aside and let the SFO proceed with enforcement; and
- ‘Double jeopardy’ - In the UK and most European countries this principle is regarded as a bar to prosecution (although notably, the US only formally recognises the doctrine at a national level).
That said, there is a risk that other companies in a group could face criminal and / or civil action in other jurisdictions so it is important that any agreement reached with prosecutors, to the extent possible, is global in nature and relates to all relevant group entities. Having legal advisors with a strong global network, such as PwC Legal, is hugely beneficial in ensuring any settlement addresses this risk.
Sadly, our answers to your questions above conclude our five blogs for five years since the UKBA came into force. We hope that you have found this series interesting and insightful. Should you have any further queries, please do get in touch with any one of our financial crime experts who have contributed to these blogs.