On 1 December 2015, Ben Morgan, the SFO’s Joint Head of Bribery and Corruption, delivered a speech in which he discussed the approval by the High Court of the UK’s first DPA on 30 November 2015 (as reported in Issue 15 of this newsletter).
He noted that the court’s decision appeared to confirm the SFO’s previous statements that a company must clear a high bar on cooperation in order for a DPA to be approved as being “in the interests of justice”. Mr Morgan referred to instances of “pseudo-cooperation”, in which companies and their advisers pledge cooperation but then attempt to delay and disrupt the SFO’s investigation.
Mr Morgan also provided some interesting insights into the “adequate procedures” defence under Section 7 of the Bribery Act. He noted there is a risk that companies focus too heavily on developing policies to combat bribery, at the expense of developing a culture in which individuals are able to identify high risk situations and react accordingly, stating that “where the risks and red flags are prevalent … no amount of just sticking to a policy is going to be adequate”.