Skip to main content
SearchLoginLogin or Signup

Accommodating Transnational Corporate Bribery Revisited: Performing Transparency in the Shadows of Negotiation

Lord, N. (2024) ‘Accommodating Transnational Corporate Bribery Revisited: Performing Transparency in the Shadows of Negotiation’, in N. Capus and F. Hohl Zürcher (eds) Negotiated Justice in Transnational Corruption – Between Transparency and Confidentiality, Helbing Lichtenhahn.

Published onFeb 13, 2024
Accommodating Transnational Corporate Bribery Revisited: Performing Transparency in the Shadows of Negotiation
·

Abstract

This chapter analyses the extent to which transparency forms part of domestic enforcement responses to transnational bribery, and the extent to which preferred mechanisms of negotiation are transparent (or not), and the ways in which visibility is regularised and formalised. In the chapter I address the following sub-questions: to what extent is ‘doing transparency’ performative (i.e., substantial or superficial)? Is the perception of transparency in anti-bribery enforcement by concerned stakeholders and communities sufficient for being seen as legitimate? What needs to be transparent and how do we determine when the transparency is adequate? I address these questions with respect to the detection, investigation, and prosecution of transnational corporate bribery in England and Wales. My core argument is as follows: transparency, as an analytical construct, is linear and not binary, ‘it’ is plural and multifaceted, with variations in transparency existing across the array of relations that characterise the enforcement process and outcome. This leads to a position whereby the UK’s Serious Fraud Office (SFO) ‘does transparency’ in a performative way, in that there is some level of surface plausibility to the presentation of transparency in enforcement practice, but that many core relations and interactions (that go beyond confidentiality requirements), take place in the shadows. Provocatively, I argue for greater diversity and visibility in the back-stage negotiations, drawing on principles of ‘restorative justice’ to inform corresponding mediation processes, and to start a discussion of how things might be done differently.

Published paper: Lord, N. (2024) ‘Accommodating Transnational Corporate Bribery Revisited: Performing Transparency in the Shadows of Negotiation’, in N. Capus and F. Hohl Zürcher (eds) Negotiated Justice in Transnational Corruption – Between Transparency and Confidentiality, Helbing Lichtenhahn: Neuchâtel, pp.289-314.

I. Introduction

1.          Transnational corporate bribery in essence involves companies that operate in at least two jurisdictions, a home country and another country, and that bribe public officials[1] in that other country to win or maintain business contracts and interests. In many cases, corrupt transactions are organised across and within multiple other countries, often making use of third-party agents or intermediaries, or perhaps subsidiaries, to do the bribery on their behalf, or diverting the monies for corrupt transactions via shell firms in jurisdictions with high levels of legal confidentiality, to obscure illicit transactions and their beneficiaries. Such corrupt arrangements may relate to one-off illicit transactions, but can also endure, regularly taking place repeatedly over many years. Responding to corporations implicated in such transnational corporate bribery creates substantive regulatory dilemmas for nation states and their regulatory, enforcement and prosecutorial authorities.

2.          It has long been known that when it comes to state responses to corporate crimes, there is usually a preference for negotiation and persuasion, or regulatory (and non-criminal law) approaches, rather than contestation and prosecution.[2] Holding implicated individual and corporate actors to account within criminal law frameworks is challenging for multifaceted reasons – for instance, the particular nature and organisation of transnational corporate bribery, in that the corresponding constitutive relations and practices are clandestine and at some level consenting (even when extortion may be involved), the harms and consequences that may be indirect and only come to light much later, the cross-jurisdictional organisational dynamics that inhibit evidence collection, and so on, mean the use of criminal justice mechanisms is not easy, even where resources permit this and political and regulatory will is present. Consequently, varied legal (e.g., outdated corporate criminal liability laws), procedural (e.g., non-prosecution policies), evidential (e.g., obtaining robust evidence from other jurisdictions), normative (e.g., inclinations to treat ‘white-collar’ offenders differently) and ideological (e.g., preferences enable key international commercial businesses) factors have led to convergence around forms of negotiated justice and settlement, such as varied civil and administrative solutions (e.g., civil recovery orders), and other forms of non-trial resolution, such as deferred prosecution agreements (DPAs). But as Cressey originally argued at the introduction of DPAs in the US context in cases of juvenile delinquency, we must scrutinise the potentially problematic nature of non-transparent negotiation and the absence of regularised and formalised visibility in the procedural approach.[3]

3.          In line with the focus of these conference proceedings on negotiated justice in transnational corruption – between transparency and confidentiality, we can therefore analyse the extent to which transparency forms part of domestic enforcement responses to transnational bribery, and the extent to which preferred mechanisms of negotiation are transparent (or not), and the ways in which visibility is regularised and formalised. We can first look to the transnational legal order that characterises the anti-bribery movement where we see that irrespective of the predominant and/or preferred legal and/or extra-legal state responses to corporate bribery, international legal frameworks that guide domestic law implementation and enforcement and require robust enforcement responses vary as to whether they draw attention to the need for transparency as part of the anti-corruption enforcement process. For instance, in his foreword to the UN Convention against Corruption 2004, the then Secretary-General Kofi Annan states: ‘And it will reaffirm the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all’.[4] Moreover, Article 5 of the UNCAC requires State Parties to develop preventative anti-corruption policies and practices that ‘promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability’.[5] However, the OECD Anti-Bribery Convention, with its focus on supply-side bribery, has no mention of transparency requirements at all, nor do the EU Criminal and Civil Law Conventions on Corruption.

4.          Given the varied emphasis given to transparency within the transnational legal order, to what extent is the enforcement response in the UK (England and Wales more specifically)[6] characterised by the pursuit of transparency, and how is transparency ‘done’ in the UK? Correspondingly, in this paper I address the following sub-questions: to what extent is ‘doing transparency’ performative (i.e., substantial or superficial)? Is the perception of transparency in anti-bribery enforcement by concerned stakeholders and communities sufficient for being seen as legitimate? What needs to be transparent and how do we determine when the transparency is adequate? I address these questions with respect to the detection, investigation, and prosecution of transnational corporate bribery in England and Wales. I start by providing some background context of the UK’s enforcement response, looking at where we were a decade ago and where we are now. I then move on to interrogate the concept (and conception) of choice for these conference proceedings, that of ‘transparency’, considering the multifaceted normative and empirical aspects of the corresponding processes and outcomes. I then outline two areas of concern relating to transparency (there are many more), drawing on my earlier and more recent research into the regulation of corporate bribery: the discretion and (de)prioritisation in case selection, and the negotiating of non-contentious outcomes. My core argument is as follows: transparency, as an analytical construct, is linear and not binary, ‘it’ is plural and multifaceted, with variations in transparency existing across the array of relations that characterise the enforcement process and outcome. This leads to a position whereby the UK’s Serious Fraud Office (SFO) ‘does transparency’ in a performative way, in that there is some level of surface plausibility to the presentation of transparency in enforcement practice, but that many core relations and interactions (that go beyond confidentiality requirements), take place in the shadows. Provocatively, I argue for greater diversity and visibility in the back-stage negotiations, drawing on principles of ‘restorative justice’ to inform corresponding mediation processes, and to start a discussion of how things might be done differently.

II. Background and Context: Accommodating Transnational Corporate Bribery in the UK

5.          When I undertook my doctoral research into the regulation of transnational corporate bribery in the UK and Germany between 2008 and 2012, I spent time with the UK SFO’s investigators and prosecutors, as well as investigators and prosecutors in Germany to gain insights into the divergences and convergences present in their respective approaches to dealing with implicated corporations. A key conclusion of my 2014 monograph that presented this empirical work, was that, in line with the below mentioned challenges and obstacles, ‘accommodation’ had emerged as the default enforcement position. In essence, this is characterised by a regulatory landscape that accommodates a certain amount of transnational corporate bribery, either due to an inability to control effectively or due to decisions (e.g., for economic/ideological reasons) not to fully prosecute. In other words, this challenging landscape reflects a series of multifaceted pragmatic, practical, ideological, and normative factors, that in the case of corporate bribery, have resulted in a form of accommodation[7] and the ‘negotiation of non-contention’,[8] with such compromises leading to an enforcement landscape whereby corporations are ‘too big to jail’.[9] Since that time, an extension of this accommodation has been provided with the implementation of non-trial resolutions, and Deferred Prosecution Agreements (DPAs) as the preferred mechanism, alongside a shift towards the ‘defining down’ of bribery with the emergence of failure to prevent offences becoming the de facto criminal law offence attached to substantive bribery offending, rather than the substantive offences themselves (including the opportunity to defer prosecution for such strict liability offences) (Table 1 provides an overview of DPAs for transnational corporate bribery in the UK to date). Thus, we have seen the continuation of accommodation in the UK context, particularly as the number of known bribery cases (not considering the large ‘dark figure’ of transnational corporate bribery) outweighs the enforcement capacities of the SFO (this is the same for most criminal law authorities) or their particular nature makes evidence gathering and investigation ill-advised, with many cases being closed without further action, and of those cases pursued, negotiation being the central mechanism for concluding cases via non-trial resolutions.

6.          Transparency and DPAs has long been a concern. DPAs originated in the US, first used in cases of juvenile offending to divert young offenders away from conviction for minor offences, but since the 2000s used to deal with corporations implicated in major financial crimes, including foreign bribery, that represent serious forms of criminal offending. Discretionary diversion consisting of negotiation and persuasion within the criminal justice system is not a new phenomenon. For instance, in the US context, Cressey drew attention to the negotiation of justice as being both necessary (on pragmatic grounds) and problematic (non-transparent), making the case for such procedures to be regularised and formalised in an openly visible way to ensure legitimacy.[10] He also questioned if justice that is negotiated, whether this is done openly and transparently in public or not, is ‘commensurate with fundamental democratic legal principles’.[11] Although negotiation with corporations in cases of corporate bribery pre-dates the introduction of DPAs in the UK, as we saw varied civil solutions to corruption cases, DPAs as the default response raises questions, as originally raised by Cressey, of the problematic nature of non-transparent negotiation and the absence of regularised and formalised visibility in the procedural approach. In the following section, the concept of transparency will be scrutinised before considering transparency in the UK response.

Table 1 Overview of DPA Approved Judgments for Transnational Corporate Bribery[12]

Company / Authority

Date

Presiding Judge

Facts of the Offence(s)

Terms of the DPA

Standard Bank Plc

 

SFO

30 November 2015

The Rt. Hon. Sir Brian Leveson

- S.7 of the Bribery Act 2010: Failure of a commercial organisation to prevent bribery, in this case, by an associated person, Stanbic Bank Tanzania Limited and two Stanbic employees, for the advantage of Standard Bank.

- Compensation payment (US $6 million plus interest in US $1,046,196.58)

- Profit disgorgement (US $8.4 million)

- Financial penalty (US $16.8 million)

- Past/future cooperation

- Independent review of compliance system

- Payment of SFO costs

Sarclad Limited

 

SFO

11 July 2016

The Rt. Hon. Sir Brian Leveson

- S.1 of the Criminal Law Act 1977: Conspiracy to corrupt contrary to S.1 of the Prevention of Corruption Act 1906; Conspiracy to bribe contrary to S.1 of the Bribery Act 2010 – both in collaboration with third part agents/intermediaries

- S.7 of the Bribery Act 2010: Failure to prevent bribery by its employees or agents.

- 28 contracts implicated in the bribery schemes.

- Disgorgement of gross profits of £6,201,085

- Financial penalty of £352,000 (based on what is affordable)

- Past/future cooperation

- Review and maintenance of the organisation’s existing compliance programme

Rolls Royce PLC, Rolls-Royce Energy Systems Inc. (RR)

 

SFO

17 January 2017

The Rt. Hon. Sir Brian Leveson

- S.1 of the Criminal Law Act 1977: Conspiracy to corrupt contrary to S.1 of the Prevention of Corruption Act 1906 (six counts);

- False Accounting contrary to s.17(1)(a) of the Theft Act 1968 (one count)

- S.7 of the Bribery Act 2010: Failure to prevent bribery by its employees, intermediaries, or agents (five counts).

 

- Disgorgement of £258,170,000

- Financial penalty of £239,082,645

- Past/future cooperation

- Payment of SFO’s costs in full (c£13m)

- Implementation of recommendations relating to compliance programme

Güralp Systems Limited (GSL)

 

SFO

22 October 2019

Mr Justice William Davis

S.1 of the Criminal Law Act 1977: Conspiracy to corrupt contrary to S.1 of the Prevention of Corruption Act 1906 (one count)

- S.7 of the Bribery Act 2010: Failure to prevent bribery by its employees (one count)

- Past/future cooperation

- Disgorgement of £2,069,861

- Review and maintenance of the organisation’s existing compliance programme

Airbus SE

 

SFO

31 January 2020

The Rt. Hon. Dame Victoria Sharp

- S.7 of the Bribery Act 2010: Failure to prevent bribery by its employees (five counts)

- Past/future cooperation

- Disgorgement of €585,939,740

- Financial penalty of €2398.034,571

- Payment of SFO’s costs of €6,989,401

- Remediation and improvement of compliance programme

Airline Services Limited (ASL)

 

SFO

30 October 2020

Mrs Justice May DBE

- S.7 of the Bribery Act 2010: Failure of a commercial organisation to prevent bribery, in this case, in relation to the use of an Agent to obtain preferential treatment in tender processes (three counts)

- Past/future cooperation

- Disgorgement of £990,971.45

- Financial penalty of £1,238,714.31

- Contribution to SFO’s costs of £750,000

Amec Foster Wheeler Energy Limited (AFWEL)

 

SFO

1 July 2021

The Rt. Hon. Lord Justice Edis

- S.1 of the Criminal Law Act 1977: Conspiracy to corrupt contrary to S.1 of the Prevention of Corruption Act 1906 (nine counts)

- S.7 of the Bribery Act 2010: Failure to prevent bribery by its employees (one count)

- Past/future cooperation

- Compensation payment of £210,610.

- Disgorgement of £47,815,914.15 (to HM Government) and US$3,531,260.40 to the US Securities and Exchange Commission.

- Financial penalties of £46,033,891.98 (to HM Government) and

US$4,593,750.00 (to the US Department of Justice).

- Payment of SFO’s costs of £3,367,088

- Review and maintenance of the organisation’s existing compliance programme

III. Transparency as an analytical construct: process and outcome

7.          Transparency is a mysterious concept, and a complex and multi-dimensional analytical construct. In etymological terms, transparency, from the original conception in medieval Latin, had a literal sense, relating to the showing of light through an object or the coming into sight of an object, followed by its figurative meaning of ‘easily seen through’. As a concept in its figurative sense, it is seen as something desirable in specific contexts (or undesirable in others) where things are free from an attempt at concealment (or not), or in those literal terms, referring to a social state, relation, or practice in which something can essentially be seen through. We often see things (social phenomena, entities, and relations) described as transparent or not, in binary terms, but the concept is better thought of in linear and multi-dimensional terms whereby different gradations of transparency in line with acceptable levels of visibility exist in relation to different practices and activities, and in which different variables contribute to assessments of what is labelled transparent or not. In these terms, being transparent or doing transparency is situational and context-specific, albeit we can look for commonalities across contexts about what may be viewed as acceptable transparency. But what the threshold of acceptable transparency actually is remains unclear – how transparent does a thing or process need to be for it to be accepted as transparent?

8.          Transparency is also a two-sided concept in that it inheres both a process of transparency and an outcome as transparent. Determinations of transparency are shaped by various and multi-faceted ‘inputs’, such as ideological preferences, expected conformity with societal or community values, norms and assumptions, anticipated material benefits, plus more. Whilst determinations of transparency produce various ‘outputs’, in that consensus or dissensus about transparency shapes how people behave or what they believe to be correct. What is held as acceptable transparency within any given anti-bribery social group, including the regulated business community, is embedded within and shaped by the enduring culture and social-political-economic-legal structures and institutions over time and space, and the corresponding shared expectations that emerge in these ‘glocal’ spaces (i.e., sites of interacting international and domestic norms and expectations).

9.          Transparency is regularly advocated as a desirable ‘ideal’ when it comes to understand how enforcement and regulatory authorities go about their control behaviours, but whether processes that are more or less transparent lead to greater levels of enforcement legitimacy is an empirical question, that we currently do not have the answer for. For instance, what empirical evidence is there that increased transparency across similar and/or diverse jurisdictions improves regulatory relations or outcomes? Can non-transparent enforcement actions be equally ‘just’ as those with greater transparency? Normatively it is difficult to argue against greater transparency, even if we do not have the data to determine the effect of this on perceptions of enforcement. This issue perhaps creates a tension between moral entrepreneurs who foreground implied requirements, and expectations, of transparency and what ‘it’ can do, and empirical analysis about what the impacts of greater or lesser transparency actually does in practice.

10.        With reference to the focus of these conference proceedings, it seems plausible to strive for high transparency and high confidentiality, but is this feasible when dealing with sensitive data and with commercial organisations? Conversely, at the opposite end of the scale it might be argued that actual or perceived low transparency and low confidentiality imply delegitimation of the enforcement regime, as implicated actors may choose not to engage for concerns over the visibility of their personal or organisational circumstances. In these terms, understanding transparency ideally requires an empirical analysis of the normative embeddedness of the concept. However, as Cressey originally outlined, we can seek to assess whether those negotiations key to enforcement are sufficiently transparent or not and whether this is problematic in nature.[13] This in part is assessed in terms of the presence or absence of regularised and formalised visibility in enforcement procedures, and we can start by looking at those authorities, such as the UK SFO, that has responsibility for the exercise of power through their regulatory positions.

IV. Transparency and the UK Enforcement Response: Performativity in the Shadows

11.        With the above discussion in mind, this section considers particular social relations and processes relating to the SFO’s enforcement response (from case selection through to case conclusion), that can be considered to have varying levels of transparency at different stages of the regulatory interactions with the regulated community. The section is organised around two themes (that emerged as significant in my earlier work, and remain so):

The discretion and (de)prioritisation in case selection (A.) and negotiating non-contention (B.).

12.        Examining transparency is a multi-dimensional endeavour requiring an appreciation of context-specificity, and a nuanced approach to the concept of transparency (i.e., linear construct with activities of varying transparency along a spectrum). The discussion below is not comprehensive or exhaustive, but indicative of key processes and relations within the UK enforcement regime where scrutiny of transparency is required. For instance, other themes could be examined also, such as the nature of formal and informal relations and dialogue between regulators and the regulated community that take place ‘off the record’ in variously formal environments, from conferences and events, to receptions and social gatherings. Or the movement of staff through the ‘revolving door’ from public service to private practice, and how this enables or inhibits enforcement action. Or the funding arrangements of the SFO could be analysed, in particular the provision of so-called ‘blockbuster’ funding authorised by the Attorney General when the SFO requires exceptional funding. But space does not permit a lengthier interrogation of these issues.

A. The discretion and (de)prioritisation in case selection

13.        All regulatory and enforcement authorities have resource challenges, making policies of full enforcement impracticable – cases must be prioritised or otherwise selected, and high levels of discretion in England and Wales permit this. Unlike our European neighbours where principles of legality ‘require’ authorities to investigate and where appropriate prosecute all cases that come to their attention (although such obligations are circumventable), the principle of opportunity in England and Wales can be applied at various stages of the enforcement process, including decisions over which cases to investigate and prioritise, or deprioritise as the case may be. Domestic legal principles permit this and there are transparent policies overseeing the use of such discretion. However, how discretion is applied in these processes is not always clear or visible, a concern also identified by the OECD’s working group on bribery.

14.        For instance, according to the OECD’s Phase 4 report on the UK published in 2017, the UK has in response to previous concerns, ‘…upgraded substantially the processes used to decide which cases are accepted for investigation’.[14] In the UK there now exists a Case Evaluation Board (CEB) that considers received intelligence reports and advises the SFO Director on the suitability of cases for investigation in line with the Statement of Principle (that sets out where the principles on which the SFO will in theory take on cases for investigation and prosecution), albeit the Director ultimately decides whether to accept or decline an investigation: ‘Where the Director declines to accept a case for investigation, a full narrative is made setting out the rationale for his decision’[15] but the SFO claims that a recommendation from the CEB has never been rejected.

15.        Relating to the discretion to take on cases or not, the OECD has also raised concerns about the possibility given to UK Government Ministers to be consulted about individual criminal cases, a process referred to as the ‘Shawcross Exercise’. This practice is not publicised or visible, lacking transparency, and enables the UK’s Attorney General or SFO Director to request information from Ministers that is relevant to the decision as to whether the public interest requires a prosecution, such as sensitive information or material. The concern here is that national economic interests or relations with other States might influence decisions not to prosecute, which is not permitted within the OECD Convention. Formally, national economic interests do not influence this, yet separating international commerce involving major UK companies from national economic interests is artificial, given they are inextricably interconnected. The OECD’s Working Group on Bribery recommended that the UK ‘[e]nsure that the use of Shawcross exercises in foreign bribery cases is publicised and transparent, as the circumstances permit [Convention, Article 5]’[16] but the UK’s written follow-up report in 2019 did not provide evidence that the issue would be addressed.[17] The UK responded as follows:

‘There is no single process by which the use of Shawcross exercises is made public. Shawcross exercises are only undertaken in a very few exceptional cases. Often these are cases involving highly sensitive issues of national security and international relations. HM Government would not comment on whether a Shawcross exercise had taken place whilst an investigation or prosecution remained live. Once an investigation or prosecution had concluded it will always consider whether the use of a Shawcross exercise could be made public on a case-by-case basis. Disclosing that a Shawcross exercise had taken place would enable the public to discover that the case was, in all likelihood, particularly sensitive and/or involved national security issues. In some cases, where these issues are not obvious, it may be damaging to make this disclosure’.[18]

16.        In a subsequent Addendum document to update the 2019 follow-up report, the UK refined its position further, stating that ‘[d]ue to the need for confidentiality and in order to respect the independent investigation and prosecution of foreign bribery cases, the circumstances will not permit the use of Shawcross exercises to be publicised and transparent in live and on-going cases’ but going on to clarify that ‘HM Government is committed to continued transparency and integrity will in each completed case which involves a Shawcross exercise, will consider if the circumstances permit publication of details’.[19] This was again reiterated in an additional phase 4 report.[20]

17.        Thus, the process of case selection and prioritisation, whilst principle-based, is not transparent. Little information is made publicly visible regarding cases that come to the SFO’s attention and are either dismissed, passed on to other authorities, or selected for investigation but subsequently closed. There is a formal transparency to the principles and processes that guide and structure the decision-making processes, but an absence of formalised transparency to the details of these decisions. Yet, Article 13 of the UNCAC, in relation to the participation of civil society, highlights the importance of ‘(a) [e]nhancing the transparency of and promoting the contribution of the public to decision-making processes; [and] (b) [e]nsuring that the public has effective access to information’.[21]There is scope here to provide insights into procedural decision-making which can in turn enhance the legitimacy of the case selection and (de)prioritisation processes.

B. Negotiating non-contention

18.        Since my earlier work on the regulation of bribery as outlined above, there have been moves in the UK regulatory landscape to increase the visibility of enforcement outcomes, particularly in relation to DPAs. For instance, whereas civil settlements negotiated by the SFO during the period of my research there were accompanied by press releases posted on the SFO website with a small number or paragraphs with some high-level information, the announcement of DPAs are now accompanied by lengthy and detailed documentation covering the terms of the DPA, the approved preliminary and final judgments, and the Statement if Facts. This undoubtedly creates more visibility in terms of the transparency of the negotiated outcome (high transparency), but raises questions about the transparency of the process of negotiation (low transparency).

19.        Whilst some confidentiality is necessary, there is little outward transparency when it comes to the negotiation of non-contention. One issue is that these DPA outcomes and judgments incorporate a discursive justification of the interests of justice.[22] Textual justifications within the DPA judgments are dialogical (a product of judicial discussions with involved stakeholders), relational (connecting multiple discourses) and interactive (shaping, and being shaped by, communities of anti-bribery practice). Following on, such approved DPAs and the accompanying documentation, configure, or aim to configure, how relevant stakeholders understand what justice in cases of corporate bribery looks like and why (i.e., negotiated agreements, rather than contestation), and how relevant stakeholders should behave (i.e., incentivising self-reporting, improved compliance within regulated communities etc.) to empower any such regulatory interactions. For instance, as the approved judgments of DPAs indicate at the start, a preliminary, private hearing prior to official request takes place to determine whether the DPA is ‘likely’ to be in the interest of justice. Emphasis on likely through quotation marks to imply this determination is provisional and could change at the official hearing. But this has never been the case. It should be noted that if the declaration is declined, a further private application is permitted as per paras. 7(2) and (3) of Schedule 17 of the 2013 Act. In other words, there are multiple opportunities to get the details of proposed DPAs right that have no visibility beyond what the presiding judge may choose to comment on in their published judgment or remarks. This raises questions about who is able to participate in these private negotiations.

20.        So which actors are invited to participate in these private, non-transparent processes? To date, there have been five different presiding judges over DPA negotiations, three males and two females, all white (these demographics are not a critique, but are indicative of which judges have sufficient experience of fraud or corruption cases): The Rt. Hon. Sir Brian Leveson (three DPAs); Mr Justice William Davis; The Rt. Hon. Dame Victoria Sharp; Mrs Justice May DBE; and, The Rt. Hon. Lord Justice Edis. All five judges are highly decorated in terms of high social status and professional prestige; they have all been awarded knighthoods and/or damehoods, having been appointed to high judicial office following extensive legal careers in England and Wales. Although judges have ultimate responsibility for the approval decisions when it comes to DPAs, the process is dialogical, as representatives of the SFO (applicant) and the corporation (respondent) engage with the judge at the abovementioned preliminary (and private) meetings, enabling provisional reasoning to be established.

21.        Table 2 provides a breakdown of these representatives at these meetings for each DPA. Corporate representatives include eight males and five females, all white, whilst SFO representatives include 15 males and eight females, three of whom were Asian British, the rest white (again, demographics may or may not be of significance). As with the judges, these are all highly respected, mostly senior (some supporting junior) legal representatives of high social status. The key point being that to date, DPA negotiations are largely a product of relations between mostly white, mostly male, actors of high socio-economic background and status share between judges and legal representatives for the SFO and the companies. There is limited empirical evidence on the ways in which socio-economic-cultural factors shape negotiated justice in corporate crimes, but related questions have been raised about the role of status and differential enforcement,[23] shifts in public indignation relating to perceived social injustices in how elites are dealt with in the criminal justice system,[24] the varying influence of status on leniency,[25] the special sensitivity afforded to socially privileged offenders[26] or the empathy judges show to white-collar offenders of a similar social background,[27] though data sources are weak (i.e., reliance of criminal justice data) and definition of concepts vary.[28]

Table 2: Breakdown of Other Key Stakeholders in DPA Negotiations

Company

Respondent Representatives (M/F)

Applicant Representatives (M/F)

Ethnicity

Standard Bank

Nicholas Purnell QC[29] (1/0)

Sir Edward Garnier QC, Crispin Aylett QC and Allison Clare (2/1)

Four white

Sarclad

Vivian Robinson QC (1/0)

Zoe Johnson QC and Paul Raudnitz (1/1)

Three white

Rolls Royce

David Perry QC Miranda Hill and Katherine Hardcastle (1/2)

Sir Edward Garnier QC, Richard Whittam QC, Allison Clare, Christopher Foulkes, Saul Herman and Jennifer Carter-Manning (4/2)

Nine white

GSL

Hugo Keith QC (1/0)

Simon Mayo QC, Trevor Archer and Greg Unwin (3/0)

Four white

Airbus

Hugo Keith QC and Ben FitzGerald (2/0)

James Lewis QC, Allison Clare, Katherine Buckle and Mohsin Zaidi (2/2)

One Asian British, five white

ASL

Alison Pople QC (0/1)

Crispin Aylett QC and Ms. Rachna Gokani (1/1)

One Asian British, two white

AFWEL

David Perry QC, Miranda Hill, William Hays, and Katharine Hardcastle (2/2)

Sasha Wass QC, Cameron Brown QC and Kabir Sondhi (2/1)

One Asian British, six white

Totals

Male – 8 / Female - 5

Male – 15 / Female - 8

Asian British – 3 / White - 33

23.        There are no reasons to suggest the behind the scenes negotiations in the shadows between these varied representatives are inappropriate, but the lack of transparency about these private meetings, and the tendency towards convergence in demographics of those involved, raises valid questions about whether the more diverse involvement of other actors and stakeholders might influence DPA decision outcomes.

24.        As Article 10 of the UNCAC states:

‘Taking into account the need to combat corruption, each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision- making processes, where appropriate. Such measures may include, inter alia: (a) Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public’.[30]

25.        Greater transparency in the negotiation process may not align with the fundamental principles of domestic law, but there is a wealth of expertise that could further enhance to the robustness of the outcomes of negotiation, providing enhanced legitimacy to the enforcement response.

C. Learning from ‘restorative justice’

26.        As Braithwaite notes, ‘restorative justice, conceived as an intellectual tradition or as an approach to political practice, involves radical transformation. On this radical view restorative justice is not simply a way of reforming the criminal justice system, it is a way of transforming the entire legal system, our family lives, our conduct in the workplace, our practice of politics’.[31] In brief, although it is an approach that has been variously applied and reflects varying underlying principles, when we think of restorative justice, we draw attention to the foregrounding of processes of reconciliation, remediation, rehabilitation and reintegration through structured engagement and mediation between offenders, victims, and other concerned or relevant stakeholders as part of more holistic objectives to address the harms done. A key feature is usually the active and direct participation of victims and/or all those stakeholders harmed through an injustice (including competitors) together with the ‘offenders’, to ensure victim voices are heard and ensure adjudication sufficiently deals with the offending behaviours and harms done. The involvement of these actors is central, and this group can be broadly defined. Yet with DPAs, even if the harms are in some way considered (or compensation possibilities included), those victims and other relevant stakeholders are excluded from negotiations about the outcomes, when their involvement could further enhance the credibility of DPAs.

27.        How might the DPA negotiation process align with or learn from restorative justice principles? DPAs do involve an account of wrongs (and harms) done (i.e., through statements of fact) but often omitted is an account of why those wrongs were carried out. Whilst DPAs do involve an admission of the accuracy of the facts of the activities that took place, the corporate offenders do not always necessarily or explicitly acknowledge or accept their fault, or offer apologies for their conduct, meaning forgiveness from victim countries, or industry peers and bodies, is unlikely to follow – these are central expectations with restorative justice. Restitution and compensation to victims in these cases can be complex, particularly when dealing with countries where there may be a lack of certainty over the use of such compensation. Companies often do not need reintegration as such into their communities, as their place within business is rarely affected, but there is scope for companies to establish renewed commitments to those geographical locations where their business is conducted.

28.        Suggestions of whether the DPA negotiation process needs to be more transparent, visible, or diverse, relate to the pursuit of enhanced legitimacy with negotiated justice mechanisms. DPAs are only on offer if the case is strong, with corporations aiming to mitigate the consequences (if it was not strong, the DPA would not be on offer). In these terms, DPAs are about the certainty of case conclusion, and not necessarily about social peace-making as with restorative justice more broadly. For this reason, early stage involvement of other actors into negotiations is unlikely to be beneficial, and doing so may disincentivise corporations to engage in negotiations if they perceive a risk to cases being concluded on amenable and agreed terms. There would also be other concerns with early stage involvement, such as the protection of sensitive documentation and risks of leaks or unauthorised disclosures. Similarly, should other involved actors demand more punitive terms of DPAs (or even prosecution), this might negate the rationale for corporations to negotiate in the first place – if the sanctions are too devastating, the attractiveness of the non-trial resolution is negated.

29.        More practicable would be integrating diverse stakeholders (representatives of victims, civil society, industry peers, etc.) at a later stage of the proceedings where questions of reparation, compensation and denunciation have a strong public legitimacy dimension. Here, other actors can contribute to where ‘pay outs’ ought to be directed, and provide support mechanisms for this to occur, as well as ensuring wider audiences understand how ‘justice’ is being accomplished in these complex corporate cases. For instance, given the criticism of corporations being let off lightly through the avoidance of prosecution, how might ‘justice’ be communicated in relation to enhancing public legitimacy? But this presupposes others in society are, or should be, engaged with such issues. However, by bringing other stakeholders in at a later stage, concerns may arise about whether they are being brought in simply to ‘rubber stamp’ the deal and give it surface plausibility, rather than having tangible impacts on the terms.

30.        A fundamental question is that of locus standi, that is, which actors or groups ought to have the right to appear or be involved with the DPA negotiation process beyond representatives of the prosecutor, of the corporation, and the presiding judge. Victims and harm bearers, including individuals, nation-states, civil society communities, competitor companies, industry bodies, and so on, would have a strong case. However, in terms of the practicalities, would all such parties require legal representation, and if so, who would pay for this? Perhaps ‘lawyer-lite’ proceedings would be more implementable, particularly in relation to the need for apologies, community reintegration (e.g., companies being welcomed back into their industries) and to ensure any compensation is distributed appropriately.

31.        Consequently, there are many challenges to learning from the principles of restorative justice for the mediation of negotiations between interested transnational corporate bribery stakeholders, one of which is ‘[w]hether informality, confidentiality, and flexibility in the sanctioning of wrongdoing compromises needs for public processes, public norm generation and enforcement, and transparency and equity’.[32] It is these tensions that must be discussed for any shifts in the principles of negotiated justice mechanisms to occur, but by offering more diverse inclusion in negotiations, radical shifts towards more robust and ‘just’ outcomes may be achievable.

V. Discussion and Conclusion

32.        This paper has explored transparency in the context of UK enforcement of transnational corporate bribery and paid specific attention to issues relating to case selection and (de)prioritisation, and processes central to the negotiation of DPAs. Transparency is a mysterious concept and a tricky analytical construct to navigate. ‘It’ (however defined) constitutes a process and an outcome, but is best approached from a nuanced perspective that appreciates the multi-dimensionality of transparency and questions over how we determine what is adequately transparent. As Cressey originally noted, there is potential for negotiation as part of enforcement responses to be problematic in nature if non-transparent, whilst the absence of regularised and formalised visibility in the procedural approach requires scrutiny.[33] One promising solution may be to draw on the principles of restorative justice and look to integrate a more diverse array of concerned stakeholders, including victim representatives, civil society and other stakeholders to increase visibility of the negotiation process and enhance its credibility, legitimacy, and robustness.

33.        In terms of the UK enforcement response and transparency, the two themes examined indicate that there is a superficial transparency in terms of the guiding principles of procedural behaviours, such as case selection or negotiation, but the real relations and interactions that constitute these processes remain hidden in the shadows. To this end, whilst transparency is being performed by the UK Government and responsible authorities, and the SFO in particular, giving the response a surface plausibility, greater visibility is needed for concerned communities. Making more transparent the core relations and interactions that underpin enforcement, where done appropriately, can in turn enhance the legitimacy of the enforcement response as decisions made by more diverse groups can lead to more concrete and robust processes and outcomes.

Bibliography

Benson Michael L./Cullen Francis T., The special sensitivity of white‐collar offenders to prison: a critique and research agenda, Journal of Criminal Justice 16/1988, 207 ff.

Braithwaite John, Principles of Restorative Justice, in: von Hirsch/Roberts/Bottoms/Roach/Shiff (eds.), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms, Oxford 2003, 1 ff.

Clinard Marshall B./Yeager Peter C., Corporate Crime, New York 1980

Cressey Donald R., Negotiated Justice, Criminologica 5(4)/1968, 5 ff.

Croall Hazel, Combating financial crime: Regulatory versus crime control approaches, Journal of Financial Crime 11(1)/2003, 45 ff.

Garrett Brandon, Too big to jail: How prosecutors compromise with corporations, Harvard 2014

Jordanoska Aleksandra, Regulatory Enforcement Against Organizational Insiders: Interactions in the Pursuit of Individual Accountability, Regulation & Governance 15(2)/2019, 298 ff.

Katz Jack, Social movement against white‐collar crime, in: Bittner/Messinger (eds.), Criminology Review Yearbook, Vol. 2, Thousand Oaks, CA 1980, 161 ff.

Lord Nicholas/King Colin, Negotiating Non-Contention: Civil Recovery and Deferred Prosecution in Response to Transnational Corporate Bribery, in: Campbell/Lord (eds.), Corruption in Commercial Enterprise: Law, Theory and Practice, Abingdon 2017

Lord Nicholas, Prosecution Deferred, Prosecution Exempt: On the Interests of (In)Justice in the Non-Trial Resolution of Transnational Corporate Bribery, The British Journal of Criminology 63(4)/2022, 848 ff.

Menkel-Meadow Carrie, Restorative Justice: What Is It and Does It Work?, Annual Review of Law and Social Science 3/2007, 161 ff.

Simpson Sally, White-Collar Crime: A Review of Recent Developments and Promising Directions for Future Research, Annual Review of Sociology 39/2013, 309 ff.

Slapper Gary/Tombs Steve, Corporate Crime, London 1999

Sutherland Edwin H., White Collar Crime, New York 1949

Sutherland Edwin H., White-collar Crime: the Uncut Version, New Haven, CT 1983

Wells Celia, Containing corporate crime. Civil or criminal controls?, in: Gobert/Pascal (eds.), European Developments in Corporate Criminal Liability, London 2011

Wheeler Stanton/Mann Kenneth/Sarat Austin, Sitting in Judgment: The Sentencing of White-Collar Criminals, London 1988

Abbreviations

DPA(s)                Deferred prosecution agreement(s)

eds.                    editors

e.g.                     exempli gratia (for example)

i.e.                     id est (that is)

n                        foot note

OECD                  Organisation for Economic Co-operation and Development

UK                      United Kingdom

UN                     United Nations

UNCAC               United Nations Convention Against Corruption

US                      United States



[1]         And/or private actors if they represent state-owned companies, or if we expand our scope to incorporate commercial bribery also.

[2]         Sutherland 1949; Clinard/Yeager 1980; Slapper/Tombs 1999; Croall 2003; Wells 2011; Jordanoska 2019.

[3]         Cressey 1968.

[4]         UNCAC 2003, iii (emphasis added); available at https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf.

[5]         UNCAC 2004, 9 (emphasis added); see supra n 4.

[6]         Scotland has a discrete legal system to England and Wales (and even predates it) whilst Northern Ireland’s legal system closely aligns to England and Wales. The Serious Fraud Office (SFO) has jurisdiction over England and Wales, and Northern Ireland, but differences exist, such as the absence of Deferred Prosecution Agreements in the Northern Ireland legal system.

[7]         Lord 2014.

[8]         Lord/King 2018.

[9]         Garrett 2014.

[10]        Cressey 1968.

[11]        Ibid., 9.

[12]        Other DPAs have been negotiated for cases of corporate fraud as well as two DPAs for UK companies involved in domestic bribery (Bluu Solutions Limited and Tetris Projects Limited). For the purposes of this paper, I focus on transnational corporate bribery cases, but the arguments in this paper are relevant for the DPA process more widely.

[13]       Cressey 1968.

[14]        OECD 2017, 43; available at: https://www.oecd.org/corruption/anti-bribery/UK-Phase-4-Report-ENG.pdf.

[15]        Ibid.

[16]        Ibid, 94.

[17]        OECD 2019, 8; available at: https://www.oecd.org/daf/anti-bribery/United-Kingdom-phase-4-follow-up-report-ENG.pdf.

[18]        Ibid, 26.

[19]        OECD 2021, 21; available at: https://www.oecd.org/daf/anti-bribery/United-Kingdom-Phase-4-Addendum-to-the-follow-up-report.pdf

[20]        OECD, 2023; available at: https://one.oecd.org/document/DAF/WGB(2023)38/FINAL/en/pdf

[21]        UNCAC 2004, 15; see supra n 4.

[22]        Lord 2022

[23]        Sutherland 1983.

[24]        Katz 1980.

[25]        see Simpson 2013.

[26]        Benson/Cullen 1998.

[27]        Wheeler et al. 1988, 160-163.

[28]        Simpson 2013.

[29]        Queen’s Counsel (QC) at the time of the DPA negotiation.

[30]        UNCAC 2004, 13 (emphasis added); see supra n 4.

[31]        Braithwaite 2003, 1.

[32]        Menkel-Meadow 2007, 180.

[33]        Cressey 1968.

Comments
0
comment
No comments here
Why not start the discussion?