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Policy Paper Series 1 – Deterring & Punishing Corporate Bribery

The UK has been criticised for a decade for failing to prioritise the investigation and prosecution of overseas bribery.  The criticism has receded over the past two years in the light an improved enforcement record by the Serious Fraud Office (SFO) and the enactment of the Bribery Act 2010.  The UK’s record has in part improved due to the use of plea agreements in criminal proceedings and Civil Recovery Orders.  However, civil powers of recovery were designed for other purposes, and their use has revealed a number of challenges and deficiencies, leading to concerns over their appropriateness and in consequence the handling of cases by the SFO.
This has created uncertainty in the minds of both the business community and civil society about the circumstances in which a prosecution will take place, the likelihood of some form of plea agreement, the range of sentencing, fines and asset forfeiture, the risk of debarment and the extent to which multi-jurisdictional offences can be definitively settled in the UK.
There is now a sufficient number of UK cases to allow an informed discussion of the trends in enforcement and understand where the current system is working and not working.  It is particularly important to examine the subject at this time as prosecutors, companies, legislators and the wider public need to know whether the instruments available to prosecutors are sufficient to ensure that enforcement is effective under the Bribery Act, especially at a time of static or declining resources for prosecutors.
This paper is at times critical of the use of civil powers to settle criminal cases for a number of reasons, including lack of transparency, poor labelling of the criminal conduct, unclear principles for determining the amount to be confiscated, and other issues.  However, TI-UK does accept that in some cases it is in the public interest to settle cases using these civil powers, if the alternative is no resolution of the case at all.
This paper therefore seeks to:
  • analyse and explain trends in UK enforcement of foreign bribery cases and the change in context brought about by the Bribery Act;
  • address whether the use civil settlements using powers under the Proceeds of Crime Act 2002 (POCA), are appropriate and effective;
  • examine what alternative instruments are available such as  Deferred Prosecution Agreements (DPA) which are used  in the US, and how appropriate they might be in the UK context in helping to achieve a system that is more predictable and transparent; and
  • make recommendations to the UK government and prosecuting  authorities that will help to ensure just fair and transparent outcomes.
Overall, the intention is to provide a comprehensive analysis of the current landscape and help to stimulate a debate that will lead to better outcomes for both companies and the victims of bribery.  If the UK legal system can achieve a reputation for certainty, consistency, fairness and transparency, it will encourage self-reporting and a just determination of overseas bribery cases.  Transparency International (TI-UK) is of the view that the right balance, both on the exercising of prosecutorial discretion and in sentencing, has yet to be realised.

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ADDITIONAL INFO

  • Report published: Jun 2012

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