Transparency International have produced a comprehensive review and analysis of the outcomes of the foreign bribery cases that have been brought to date in the UK. It discusses the role of negotiated settlements in achieving justice, and what additional tools may be necessary to make the Bribery Act work effectively.
The paper makes 23 recommendations on a wide range of issues, including the use of Deferred Prosecution Agreements (DPAs) as a component of broader reforms.
Andrew Mitchell QC was asked for his comments as a 'prominent person in the field.
The report's abstract reads:
Since 2008 there have been some major advances in the prosecution of overseas bribery cases in the UK. There are a number of reasons for this improved enforcement of the OECD Anti-Bribery Convention, one of which is the introduction in March 2008 of the use by the Serious Fraud Office of the Proceeds of Crime Act 2002 to settle cases through the civil courts. There have also been a number of criminal prosecutions of both corporates and individuals which have involved plea agreements conducted under the Guidelines issued by the Attorney General in cases of serious or complex fraud, which enable plea discussions to take place at an early stage of an investigation.
Such initiatives have provided a platform for prosecutors to settle complex cases, which are both costly and difficult to prosecute. Equally, the exercise of prosecutorial discretion in deciding how best to settle cases in the public interest has given rise to some uncertainty as to the outcome of cases, which has been compounded by inconsistent charges and sentencing. This paper seeks to identify the problems faced by prosecutors and companies in trying to settle cases of overseas bribery against the background of the current legal system and practice, and to make some recommendations to improve transparency, recognising that bribery is a serious criminal offence and there is a strong public interest in seeing offenders prosecuted.
This subject matter is complex and TI-UK is grateful in particular for the support given by Jordan Howells. TI-UK invited a number of people prominent in this field, including Andrew Mitchell QC as well as the SFO and FSA, to comment on our analysis and findings. Their comments were useful both in ensuring that the factual basis of the paper was sound and in getting some alternative perspectives on what could be described as negotiated justice.
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