International - Written by on Monday, February 21, 2011 14:56 - 0 Comments

Why Sprowston Parish Council could be just the beginning if the war is lost…

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Yesterday, John Cridland, the director of the CBI wrote in The Times that he makes no apology for standing up for corporates in order to try and ensure that UK business is not unfairly damaged by the implementation of the Bribery Act.

We agree.

On the same day we wrote about our concerns over reports that Self Reporting, Civil Settlements and the move to a more US style plea agreement approach are under attack in Whitehall along with the future of the combined prosecution and investigatory role in the context of corruption and serious corporate crime. A role which is today embodied in the SFO.

We support the action that the CBI has taken in applying pressure to have the guidance to the Bribery Act refined and expect to see the benefits of their efforts shortly in the published guidance.

Throwing the baby out with the bathwater

However we are very concerned about the suggestion that the concept of Self Reporting, Civil Settlements and move to a more US style plea agreement model championed by the SFO is under threat.  We are also concerned about suggestions that the prosecution and investigation of such matters be split.

Given the wide reach of the Bribery Act these reforms are a vital question for business since they offer the one thing business craves above all else.  Potential for certainty.

What of the Bribery Act?

It is clear that the Bribery Act will come into force.  That argument is over and we anticipate that the guidance is likely to be issued very soon.

We are all becoming familiar with the statements of the SFO and have a good understanding of how the Director of the SFO wishes to act. The approach of the SFO is to engage in a dialogue with business, they have adopted an open door policy to business, encouraging them to come in and talk about problems.

At first Boards and corporates were understandably reticent to adopt this approach.

This position is changing. The signs are that the SFO mean what they say and are willing to listen and help and avoid prosecution where they can. This intelligent, nuanced approach can only be a good thing,

It enables business to be candid about problems they discover knowing that the SFO are approachable and will not hang them out to dry once they have revealed the nature of the problem.

Despite the obvious successes of this approach there is now a battle royal in Whitehall with the SFO potentially being swallowed up into a huge prosecutorial body and split from its investigatory function and the ideas of Self Reporting, Civil Settlement are up for grabs.

Why turn back the clock?

The success of the SFO following on from the lessons of the De Grazia Report came from the fact that they implemented the recommendations. The decision makers and investigators and therefore the people Boards can talk to when they go in to the SFO are the same individuals.

They are highly specialized, have wide experience of complex cases and deal with a problem from the start to it’s finish. When the SFO was constantly in the press for wasting public funds perusing cases which they lost, this was not the approach.

We are in danger of returning to this expensive mess.

As far as Mr Cridland, the CBI and business is concerned they need to be aware that they did indeed win a battle but the war is being fought now, in Whitehall.

If the approach of the SFO is lost, due to some mammoth re-organization as a result of this “initiative” then business should really worry.

The “prosecutor” under the Act has very wide powers, there is comfort and sense in intelligent dialogue between concerned companies and a highly specialized Regulator such as the SFO.

There is a bleak future for business if the SFO is swallowed up in some massive behemoth where accountability is non-existent.  The story doing the rounds earlier this week about Sprowston Parish Council is fun and has been killed by the Ministry of Justice today.  However, if we are not careful it could be the beginnings of a nightmare tomorrow if the investigator and prosecution of corruption is split and the role undertaken by people who do not have the experience of specialists. It’s called mission creep.

We at the, like Mr Cridland are on the side of UK PLC, this is a very serious struggle, it will shape the future of the application of the Bribery Act and if lost will cause huge difficulty for business.

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