Caroline Bingham of the Financial Times (05 June 2013) reports that the SFO Director, when recently addressing a city law firm, bemoaned the difficulties when attempting to prosecute a corporate.
Unlike his US counterparts, where legislation is in place to do so, here the additional problems of identifying the ‘controlling mind’ and/or ‘piercing the corporate veil’ make it well-nigh impossible to bring a successful prosecution, generally because of the complex nature of many corporate and management structures.
David Green QC believes that if S.7 Bribery Act 2010 (failure to prevent bribery, i.e. install and execute adequate anti-bribery compliance systems) could be extended to apply to fraud and money laundering (with the aid of fresh legislation), and it would dovetail nicely with the forthcoming DPAs (Deferred Prosecution Agreements) and encourage the corporates to self-report.
At present the general view of those of us who defend SFO prosecutions is that without any genuine threat of a corporate prosecution why should the corporates self-report and enter a DPA?
It will be interesting to see if and when the Director gets his way.
