Top anti-fraud officials in the United Kingdom are pressing the case for an expansion of corporate liability rules to include other financial crimes besides bribery.
The 2010 Bribery Act already puts companies on the hook for failing to prevent bribery by associated persons for its benefit, unless the company can prove adequate preventive measures were in place. David Green, director of the Serious Fraud Office (SFO), said last week the suggested expansion of corporate liability, floated by himself and others, is “gaining traction.”
“I will also continue to speak in favor of amendment of S7 of the Bribery Act to create the offense of a company failing to prevent acts of financial crime by its associated persons,” Green told attendees of the Cambridge Symposium on Economic Crime on 2 Sept. “That would significantly increase our reach on corporate criminality, and is an idea that appears to be gaining traction.”
Green outlined a cross section of current SFO cases, explaining that the agency hones in on the most complex fraud and bribery cases. “The SFO is focused on the top strata of economic crime and is clear as to its mission. What is less clear is how the lower tiers of fraud are tackled. Enforcement can be patchy; police forces have other competing priorities, and nationally, Fraud Squads have withered on the vine,” Green said.
Green added that “nobody disputes” that officials have a long way to go in fighting economic crime.
Speaking at the same conference, Attorney General Jeremy Wright said officials are considering the creation of an offense of corporate failure to prevent economic crime, modeled after section 7 of the Bribery Act, according to an article in The Independent. Taking the lead on the fight against corruption and economic crime is “a priority issue” for the government, the article quoted Wright as saying.
“The evolving nature of economic crime means we need to continue to find and develop new ways to expose and combat it,” Wright said. He added that the U.K. government is planning to publish soon for the first time a national anti-corruption plan.
The Independent article pointed out that when the prevention of bribery provision was introduced companies reacted with alarm. Firms worried it was unfair and placed too much of a burden of proof upon the companies.
Alistair Craig, a London-based commercial barrister and contributor to the FCPA Blog, wrote last week that many believe the prevention of bribery rule may be easier for large corporations to comply with because “they have the resources and clout to haul in high profile lawyers and well-known firms of lawyers and accountants so as to give the appearance that adequate precautions have been put in place.”
That may not be the case for SMEs with fewer resources available, and such an expansion could have serious ramifications for them, Craig wrote.
“If a similar offense is now extended to cover all financial crimes, it may provide a bonanza for those in compliance and monitoring but not necessarily for those businesses less able to carry the costs,” Craig wrote.
Craig suggested the interest in expanding corporate liability may stem from the SFO’s difficulty in prosecuting “conventional offenses” because of limited budgetary resources. He pointed out that Green’s report to the symposium lacked mention of any substantial outcomes in recent years and glossed over some of the SFO’s difficulties.
However, in his speech, Green said with the recent settlement of wrongful arrest and raid charges stemming from the Tchenguiz case, the SFO has put its baggage behind it and “recovered its mojo.”