Bill Dixon, a litigation partner at FSP, considers some recent developments with the 2010 Bribery Act.
Significant new laws imposing obligations on businesses over corruption have been introduced in recent years – in particular, the 2010 Bribery Act. Although the new bribery regime has generated attention and commentary, to date the number of criminal prosecutions have been relatively few.
Recently, however, the Serious Fraud Office has entered into the very first Deferred Prosecution Agreement (DPA). The case is of double significance because the DPA arose out of the first prosecution under section 7 of the Bribery Act 2010. This is the offence involving the failure of a commercial organisation to prevent bribery.
In this particular case, a bank was accused of involvement in corrupt dealings in Africa and was charged with failing to prevent corruption under section 7. A DPA involves a formal deal between defendant and prosecutors as a way of avoiding a criminal prosecution. Under the terms of the DPA in this case, the bank agreed to pay back very substantial profits it had made on the underlying transactions, to pay compensation and a financial penalty ($125 million plus in total). The bank also had to agree to submit to a corporate compliance programme to be monitored by PricewaterhouseCoopers LLP. In return, the criminal prosecution was deferred.
Organisations can sometimes be liable under section 7 for what their agents or joint venture partners do. Businesses who deal in sectors or countries where corruption issues are likely to arise may want to review their internal anti-corruption procedures.