The bribery of foreign public officials is a very complex crime which can be difficult for authorities to identify and address. Self-reporting can have significant implications for corporations.
The CDPP, Australia’s Federal Prosecution Service, together with the Australian Federal Police (AFP) sets out guidelines on the handling of instances in which a corporation self-reports foreign bribery and related offences. We take a closer look at these guidelines and some of the options available to organisations.
Advantages of self-reporting foreign bribery
Self-reporting of foreign bribery is viewed as being in the public interest, as it can save significant resources required to investigate and prosecute this type of offence. As such, the CDPP takes self-reporting into account when determining whether a corporation should be prosecuted, and the severity of the sentence.
Why self-report foreign bribery?
Corporations may choose to self-report for a number of reasons, including to:
- proactively identify and address wrongdoing within the corporation
- comply with duties to act in the best interests of the corporation
- limit corporate criminal liability
- minimise reputational damage
- demonstrate a cooperative intent with the AFP in investigating the conduct
- maximise the sentencing discount that will be available to the corporation in any relevant prosecution of the corporation
- be a good “corporate citizen”
What is the process after a corporation self-reports?
The AFP will commence an investigation into any conduct that is the subject of a self-report, and may also investigate any criminal profits associated with possible offending.
Where appropriate, the Commissioner of the AFP or the CDPP may commence action under the Proceeds of Crime Act 2002.
The corporation will be expected to give full access to all documentation relating to the matter, as well as access to any potential witnesses. As part of this process, the AFP may ask the corporation to enter into an Investigation Cooperation Agreement (ICA). This documents the AFP’s expectations of the corporation in assisting with the investigation, providing a clear framework against which a corporation’s cooperation may be assessed.
The ICA will help to inform the AFP and the CDPP’s assessment of the quality and extent of the corporation’s assistance for the purpose of any subsequent sentencing proceedings should the matter proceed to prosecution.
Prosecution Policy and Public Interest Factors
The CDPP will consider a number of factors in determining whether a prosecution of a self-reporting corporation is in the public interest, including:
- The fact the corporation has self-reported the conduct, as well as the quality and timeliness of that self-report
- The extent to which the corporation cooperates with the AFP and CDPP (where relevant)
- Whether the corporation has a history of similar misconduct
- Whether the corporation had appropriate policies and processes in place to mitigate the risk of foreign bribery, and the extent to which there was a culture of compliance with that framework
- Whether the alleged offending involved any members of the board/upper management of the corporation
- Whether the corporation has taken steps to avoid a recurrence of the alleged offending
- If the corporation has taken steps to redress any harm caused by the offending
Making an early offer to plead guilty
There are significant potential benefits for a corporation implicated in foreign bribery, when it decides to plead guilty to an appropriate criminal charge at an early stage of the investigation or prosecution process.
A corporation that is considering this option is advised to notify the AFP/CDPP that it is willing to enter into plea negotiations. If the matter is in the investigative phase, the corporation should approach the AFP in the first instance. If the matter is in the prosecution phase, the corporation should approach the CDPP in the first instance.
Sentencing Foreign Bribery offences
It is the role of the court, not the prosecution, to determine the sentence that is imposed on the defendant and the extent of the discount that is given in recognition of the corporation’s early guilty plea, remorse, assistance provided to law enforcement agencies and other factors.
A wide range of factors are taken into consideration in the prosecution and sentencing of Foreign Bribery. By choosing to self-report and making an early offer to plead guilty, a corporation can minimise their criminal liability.