Answer ... Yes. One of the tools available to both the CPS and the SFO (although to date only utilised by the SFO) to deal with specified types of corporate offending, including offences under the Bribery Act, is a DPA. A DPA is a court-approved agreement under which the prosecution of a company is deferred for a specified period, provided that the company complies with the terms of the DPA, such as paying a financial penalty and compensation and/or putting in place a compliance programme. It ultimately requires a judicial declaration that:

• the DPA is in the interests of justice; and
• its terms are fair, reasonable and proportionate.

The Deferred Prosecution Agreements Code of Practice provides that self-reporting is a public interest factor which militates against there being a prosecution; but it also focuses on the need for the self-report to result in frank and genuine cooperation. In any event, the SFO’s Corporate Co-operation Guidance states that companies must understand that cooperation does not guarantee any particular outcome. However, even where a self-report results in prosecution (as opposed to a DPA), genuine cooperation with the investigating authority will likely result in a discount on any sentence.

As an example, in the DPA between the SFO and Rolls Royce (see question 1.6), Rolls Royce was described as having provided “extraordinary” cooperation, with the judge agreeing that there should be no distinction between Rolls Royce (which did not initially self-report the conduct to the SFO) and a company which had self-reported from the outset. This was despite the underlying conduct being described as involving “egregious criminality over decades, involving countries around the world, making truly vast corrupt payments and, consequentially, even greater profits.”

Similarly, in the Airbus DPA, despite what was described by the judge as a “slow start”, Airbus ultimately provided exemplary cooperation, as evidenced by a multitude of factors, such as:

• reducing its use of business partners by 95%; and
• providing the investigating authorities with access to over 30.7 million documents.

Seen in this context, even if the authorities become aware of criminality without an initial self-report, the quality of the subsequent self-reporting or cooperation between the company and the authorities will be of importance when assessing what action should be taken against, or what penalties to impose upon, a company.

Answer ... The existence of an anti-corruption compliance programme may provide a company with a defence to a charge of failure to prevent under the Bribery Act – that is, that it had adequate procedures in place. However, whether the programme is sufficient so as to amount to adequate procedures will depend on all facts and circumstances of the case.

The mere existence of a programme, even if externally validated, may still not be sufficient. For example, in the Airbus DPA, Airbus had been awarded an anti-corruption compliance certificate by a private company for the design of its anti-bribery compliance programme. However, this was clearly insufficient, as Airbus did not seek to refute the allegations of failure to prevent on the basis that it had adequate procedures in place. In the Skansen Interiors case (see question 3.4), despite there not being any anti-bribery policy, the company argued that there were adequate procedures in place for a domestic company with 30 employees, such as:

• the inclusion of anti-bribery clauses in the relevant contracts; and
• a system for approving and settling invoices requiring various levels of approval.

However, the prosecution established that there was:

• a lack of records of Skansen’s compliance culture; and
• a lack of a policy prior to the arrival of the new CEO which was specific to the Bribery Act.

While the Skansen case was a jury conviction, meaning that it provides no judicial guidance as to what constitutes ‘adequate procedures’, it is a useful demonstration of the importance of substance over form where policies and procedures are concerned.

Answer ... In addition to the defence of adequate procedures for companies charged with failure to prevent, a company incorporated overseas may seek to argue that it did not carry on a business, or part of a business, in the United Kingdom, meaning that it was not subject to the Bribery Act.

It would be open to a company charged with a Section 1, 2 or 6 Bribery Act offence to argue that its senior management, who represent its directing mind and will, were not involved in the offence and therefore corporate criminal liability could not be established. A company could also argue, if charged with any of these Bribery Act offences, that the person carrying out the prohibited act or omission did not have a close connection to the United Kingdom.

Answer ... A type of settlement agreement potentially open to a company is a DPA. However, it is at the discretion of either the SFO or the CPS to invite a company to enter into DPA negotiations, provided that the prosecutor is satisfied that the relevant offending meets both the evidential test (which is slightly modified for DPAs) and the public interest test. Entering into negotiations does not equate to a guarantee that a DPA will be either offered or granted by a court.

While the United Kingdom does not have the concept of plea bargaining in the same sense as the United States, it is open to a company that has been charged with criminal offences to seek to plead to lesser or alternative offences, or to even try to agree a ‘basis of plea’. This is a document which sets out the particular factual basis upon which the company would be pleading guilty and which it would be sentenced upon. If there are any material disputes about the basis of plea, a separate hearing will take place before a judge (termed a ‘Newton hearing’), at which the judge will determine, upon hearing evidence, whether the basis of plea could be accepted.

Answer ... An individual convicted in the magistrates’ court of a Section 1, 2 or 6 Bribery Act offence faces:

• up to 12 months’ imprisonment; and/or
• either:
• • a fine of up to £5,000 (in respect of offences committed before 12 March 2015); or
  • an unlimited fine (in respect of offences committed after 12 March 2015).

Alternatively, if an individual is convicted of any of these offences in the crown court, he or she faces:

• up to 10 years’ imprisonment; and/or
• an unlimited fine.

A company convicted of any of the same offences can face the same level of fine as an individual, whether it is convicted in the magistrates’ court or the crown court (although it will be more likely for a company to face proceedings in the crown court). A company can only be prosecuted for the failure to prevent offence in the crown court, for which it can be sentenced to a fine. There are sentencing guidelines in place for dealing with companies, entitled Corporate Offenders: Fraud, Bribery and Money Laundering, which set out the process for assessing the level of fine that should be imposed.

Both convicted individuals and companies are also likely to face confiscation proceedings. These can lead to an order that the offender pay a sum of money which is the lower of either:

• the benefit obtained by or in connection with the offence; or
• the available assets of the individual/company.

Upon conviction, individuals can also be disqualified from being company directors for between two years and 15 years.

In the event of a conviction for an offence under sections 1, 2 or 6 of the Bribery Act, as a result of the Public Contract Regulations 2015, a company will be mandatorily excluded for a period of five years from bidding for public contracts. However, such a company may be able to make use of the self-cleaning provisions of the Public Contract Regulations 2015 which, if satisfied, may lead to the company not being so excluded.

If there is a conviction under section 7 of the Bribery Act for failure to prevent, there may be a discretionary right to exclude the convicted company from bidding for public contracts.

Answer ... There is no statute of limitations for the prosecution of anti-corruption offences.