On Friday, I wrote about how the director of the Serious Fraud Office proposed an amendment to the UK Bribery Act that would expand the law’s coverage and lead to the possible blacklisting of companies.
The Bribery Library Blog said in a post that Director David Green’s ideas are gaining traction.
The post was written by Adam Greaves of the McGuire Woods’ London Anti-Corruption Group. Another member of the Group is partner Vivian Robinson QC, who served as the SFO’s first general counsel, and David Kirk, a partner who joined the firm from the Financial Conduct Authority.
Greaves, Robinson and Kirk were kind enough to share more of their thoughts with the FCPA Blog regarding Green’s proposal to an already controversial bribery law.
The UK does not follow the U.S. legal principle of ‘respondeat superior,’ and this has led to difficulty in holding companies liable in the UK for financial crime committed in their name. To do so requires proof that someone at a top level of the organisation (e.g., a director or senior manager) has participated in the offence.
The single exception to this is contained in section 7 of the UK Bribery Act, whereby a company will be liable if any individual ‘associated’ with the company commits bribery, intending to obtain or retain business or a business advantage for the company.
The only defense available is for the company to establish that it had in place ‘adequate procedures’ designed to prevent such things occurring.
The Serious Fraud Office and the Government appear to be keen to extend this principle to cover financial crime committed by employees of corporate institutions such as banks and other firms from which the organisation benefits.
There are arguments both for and against this.
On the one hand, it might be said to be in the interests of society that institutions such as banks should be required to have in place systems which guard against the commission of economic crime in general, rather than simply within the narrow context of corruption by employees.
On the other hand, it may be argued that this should not be rushed into. Better to wait and see how the Bribery Act provision works out in practice and what legal or other problems are created by this new legislation.
It may also be argued that failure by banks and other financial institutions in this regard should remain to be dealt with by the regulator rather than through criminal enforcement.
Julie DiMauro is the executive editor of FCPA Blog and can be reached here.