On December 18 2014 the UK government published its Anti-corruption Plan. The plan recognises that bribery and corruption are major issues across the public and private sectors and seeks to make the United Kingdom a leader in the global effort to combat them.
The plan gives the National Crime Agency (NCA) the lead role in the fight against corruption. The plan promises the creation of a new central bribery and corruption unit under the aegis of the NCA that will be tasked with boosting the UK response to cases of international corruption and acting as a centre for excellence. Some have read into this an indication of the future of the Serious Fraud Office (SFO) and have used it to consider whether the SFO should continue in its existing form, or alternatively be remodelled to meet envisaged changes to the investigation and prosecution of economic crime.
Of particular interest will be the stage scheduled for Summer 2015, when the Ministry of Justice will explore reform of attribution of corporate responsibility for economic crime and a possible offence of failing to prevent economic crime. Notably, the table of actions published in the plan makes no reference to the SFO as one of the bodies responsible for undertaking the task. While there are areas in which cross-departmental projects coordinated by the Cabinet Office will involve consultation with the SFO, its absence as a lead department (while the NCA leads on more than one-tenth of all actions) will be read by many as indicative of the home secretary's approach to the SFO.
Following the Conservative Party's victory in the May 2015 general election, there are expected to be changes to the way in which corporate criminal offending is dealt with in the United Kingdom. The Conservatives have committed to reform the way in which corporates are held accountable for economic crime committed by employees. In September 2014 Attorney General Jeremy Wright announced that the government intended to introduce the offence of failing to prevent economic crime, in line with Section 7 of the Bribery Act 2010. The inclusion of this legislative reform as a proposal in the UK anti-corruption plan means that this would begin to take place in June 2015 (as one of the first issues tackled by the new government).
The impact on business is likely to be keenly felt. In effect, giving prosecutors the ability to hold corporations liable for economic criminal offences on a strict liability basis will mean the risk of prosecution for corporates for a wider range of alleged criminal offences committed by its employees. Corporates should now begin reviewing the adequacy of their internal compliance measures aimed at preventing employees and agents from committing economic crimes. This will improve the prospects of successfully deploying the statutory adequate procedures defence that is anticipated to accompany the new offence.
For further information on this topic please contact Kathleen Harris, Michael Atkinson or James McSweeney at Arnold & Porter LLP by telephone (+44 20 7786 6100) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Arnold & Porter website can be accessed at www.arnoldporter.com.