Companies must be given incentives to make a voluntary disclosure of previous misdeeds, says law firm DLA Piper. This would include far greater clarity in relation to the likely extent of any fine or sanction.

“The prosecuting authorities must be the arbiter of whether there is sufficient evidence to bring a prosecution against a company and whether it is in the public interest to do so. And the courts must be the arbiter of the proper penalty if the matter proceeds to trial and there is a conviction," comments Simon Airey, head of corporate crime and investigations at the firm.

But what happens where companies discover bribery by their employees or want to clean up the past?

"Plea bargaining is one option to consider; clearer guidelines from the courts would also be welcome," Airey says. "The mechanism of a deferred prosecution agreement works very well in the United States; and in the UK, HM Revenue & Customs have enjoyed great success with the use the civil investigation of fraud (Code of Practice 9) procedure.

"There is no reason why the SFO cannot be trusted to administer similar processes successfully. If a system for dealing with companies is designed properly, it will only be the most serious cases that are likely to require the intervention of the courts. Such a process would not usurp the function of the courts in ensuring that individuals are fairly prosecuted for criminal conduct in a personal capacity.”

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