Civil Engineering Reference
In-Depth Information
soft option' (
L. Miller; J.L.S.S. 2011, 56(7), 52
). Submitting a report to the SOCD is
putting evidence of bribery and corruption within an organization into the hands
of the Crown Prosecution. While the guidance states that the initial report and
information given to the SOCD will be confidential, this may be used by the Crown
in any subsequent criminal investigation and prosecution, or in any civil recovery
investigation. Furthermore, if the SOCD decide that a case is to be referred to the
Civil Recovery Unit (CRU), the solicitor for the business will be notified of this and
it will be publicly acknowledged that the case is under consideration in accordance
with the self-reporting initiative; though no further public comment will be made.
Once a settlement has been reached, this will be made public, as was the case with
Abbot. Therefore self-reporting could be potentially damaging to an organization's
reputation. Additionally, since any recommendation by SOCD as to whether the case
merits criminal prosecution or referral to the civil courts must be approved by Crown
Counsel, the only benefit to the organization of a self-report may be that, according
to SOCD guidance, the self-reporting organization 'will be able to rely on their
self-reporting and co-operation with the Crown and law enforcement as significant
mitigating factors to be taken into account by the Court'. But it still remains unclear
how far this guidance can be relied on.
In England and Wales, corporations remain able to self-report to the SFO. he SFO
published its revised policies on facilitation payments, business expenditure and cor-
porate self-reporting in October 2012, which stated that in relation to self-reporting
the SFO will prosecute if conviction is in the public interest and realistically probable.
Although the SFO used to be known to prefer civil remedies, the new policies present a
shift away from this position. While self-reporting will be considered when the deci-
sionastowhethertoprosecuteismade,eachcasewillbedecidedindividuallyand
self-reporting does not guarantee that no prosecution will follow. However, David
Green, QC, the Director of the SFO, stated in October 2013:
If a company made a genuine self-report to us (that is, told us something we did not
already know and did so in an open-handed unspun way), in circumstances where
they were willing to cooperate in a full investigation and to take steps to prevent
recurrence, then in those circumstances it is difficult to see that the public interest
would require a prosecution of the corporate.
22.5.4 The court's approach to self-reporting settlements
In
R
v.
Innospec Ltd
(2011), where a plea bargain arrangement had been made with
the SFO in relation to Innospec's corrupt activities, Lord Justice Thomas stated that:
'itwouldbeinconsistentwithbasicprinciplesofjusticeforthecriminalityofcorpora-
tionstobeglossedoverbyacivilasopposedtoacriminalsanction'.Hesaidthatthose
who commit such serious crimes as corruption must not be treated in any different
way from other criminals.
What is significant in the light of the self-reporting initiative, is that the court
forcefully stated it had concluded 'the Director of the SFO has no power to enter
into the [plea] arrangements made and no such arrangements should be made
again'.
