Ben Morgan, the joint head of Bribery and Corruption at the Serious Fraud Office gave a speech to the Global Anti-Corruption and Compliance in Mining Conference on 20 May 2015. The speech did not make a radical departure from the public comments of other senior SFO officials, with a focus on co-operation and self reporting. The issue of whether co-operation includes a waiver of LPP was not addressed directly, but the message seemed pretty clear.
Two interesting points did emerge from the speech:
- Firstly, Mr Morgan stated “We have issued our first invitation letters giving corporates the opportunity to enter into DPA negotiations. Where we are now is working with corporates on how best to go through that process”. Although this has been suspected for some time, it is the first public acceptance by an SFO official.
- Secondly, although heavily qualified, Mr Morgan suggested that there will soon be convictions of major organisations under the Bribery Act:
“…in terms of trial outcomes relating to corruption we have built a good trajectory over the last year – we’ve had our first contested conviction of individuals for overseas corruption (senior managers of Innospec who got custodial sentences), our first contested conviction of a corporate for overseas corruption (Smith & Ouzman, paying bribes into Africa, in relation to election ballot papers, of all things), and our first convictions of individuals under the Bribery Act – and in total the SFO convicted 18 defendants (corporates and individuals) in the last calendar year. If that trajectory continues through our current case load, then common sense tells you that we will soon have convictions of major organisations under the Bribery Act.”
Time will tell whether we will see a major corporate conviction for Bribery in the near future. There is reason to have more confidence in a DPA, but it may depend on the guarantees of finality that the SFO can give. It may also come down to who is prepared to be forever recognised as the first recipient of a DPA in England & Wales.