Camilla de Silver of the SFO has spoken on prosecutors’ priorities. She started by noting the role of her audience in getting in place policies and procedures that would be adequate to provide a defence to an allegation of breach of s7 Bribery Act. She commented that, to date, SFO has not come across a corporate that was sufficiently confident of its procedures to persuade SFO of the adequacy of its procedures or run the defence in court.
She mentioned that a recent CPS prosecution had seen the s7 defence run for the first time, and that this had been rejected by the jury. She went on to comment that, in the absence of official guidance in the form of a major case dealing with adequate procedures, firms could make good use of the MoJ guidance and points that have arisen from the Standard Bank and Rolls Royce DPAs. In particular, she noted the importance of top-level commitment to proper governance and organisation of compliance, and how the Standard Bank ase went to show the failings that led to the firm not considering or identifying the corruption risks.
She moved on to discuss current investigative techniques, including AI and how it has been used to date and addressed the importance of regulatory co-operation.
She addressed DPAs, considering the circumstances in which SFO may consider it more appropriate to agree a DPA than to prosecute. It will consider
- the timing of the first contact – as DPAs are a reward for openness;
- internal investigation – what firms have already done, what they are willing to give to SFO, how they have handled the evidence and what is the approach going forward
- co-operation – co-operation alone is not enough to get a DPA. SFO wants to see reform within the company, including the removal of culpable senior staff.
Finally, she mentioned that SFO expects additional work in assisting HMRC in instances of alleged commission of the new corporate offence of failure to prevent the facilitation of overseas tax evasion, and also on UWOs.