Posted by Claus Andersen, Partner
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OECD evaluates UK anti bribery efforts
Earlier this year the bribery working group of the Organisation for Economic Co-operation and Development (OECD) published a report on the UK’s implementation and application of the OECD convention on combating the bribery of foreign public officials in international business transactions.
The working group found that the UK has significantly improved its foreign bribery enforcement. Substantial efforts have been made to raise awareness of the Bribery Act 2010 and the foreign bribery offence which one of the offences included in the Bribery Act. This has led to heightened awareness of foreign bribery-related issues in the UK. To support this the Serious Fraud Office (SFO) has significantly increased foreign bribery enforcement. However, the working group also points out areas, where the UK could improve its practises.
First, the group is concerned that, to settle foreign bribery-related cases, UK authorities are increasingly relying on civil recovery orders that require less judicial oversight and are less transparent than criminal plea agreements.
Secondly, the group is also concerned that, in some cases, the SFO has entered into confidentiality agreements that prevent the disclosure of key information after cases are settled.
As a result of the above findings, the working group has made a number of recommendations to improve the UK’s fight against foreign bribery. These include:
- Steps should be taken to ensure that the SFO and the police resources for foreign bribery cases are adequate. The working group considers that the SFO’s recent improvements in efficiency are partly due to its use of pre-trial resolutions, requiring companies to self-investigate, and allowing cases to be investigated by the FSA (instead of the SFO).
- The SFO should ensure that it investigates allegations of foreign bribery and prosecutes, where appropriate, regardless of whether the FSA takes action. The use of criminal, civil and administrative measures in foreign bribery cases are not necessarily mutually exclusive. FSA fines may not fully reflect the gravity of the criminality in a case, as it does not have a mandate to impose sanctions for foreign bribery. In such cases, additional criminal and civil sanctions should be imposed. As a result, the SFO and FSA should conduct co-ordinated enforcement action where appropriate.
- The SFO should establish clear procedures and criteria for communicating with companies concerning prospective and past conduct. The procedures should clearly distinguish between companies seeking advice and those who self-report wrongdoing. Requests for advice and the advice itself should be made public. Where the communication concerns self-reporting, agreements not to prosecute and their factual basis should also be set out in writing, and made public where appropriate.
The UK government is required to make an oral follow-up report on its implementation of certain recommendations within one year. It also has to submit a written report to the working group, within two years, on the steps it has taken to implement all of the recommendations.
It remains to be seen how the recommendations will be implemented and which effect they will have on the UK efforts to combat bribery.
For further information please contact Claus Andersen, Partner in Corporate and Commercial on 02075832222 or email firstname.lastname@example.org
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