ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
7.3 Jurisdictional Reach of Enforcement Bodies Both the Serious Fraud Office and the Crown Prosecution Service can investigate offences that occur both inside England & Wales as well as outside the jurisdiction if they meet the tests for jurisdiction and extraterritoriality (discussed previously in this chapter). The SFO in particular works closely in conjunction with other interna - tional corruption enforcement agencies such as the US Department of Justice and there is fre - quent sharing of information between national enforcement agencies. 7.4 Discretion for Mitigation and Aggravation Deferred Prosecution Agreements were intro - duced in February 2014 through the Crime and Courts Act 2013 and can be used for bribery as well as other white-collar criminal offences com - mitted by corporates. They are available to both the Crown Prosecution Service and the Serious Fraud Office. If a DPA is in force it means a com - pany is still charged with a criminal offence but as long as the agreement is approved by a judge proceedings are automatically suspended. There are a number of factors that the pros - ecution agencies will consider when deciding whether to enter into a DPA. For example, having a pro-active compliance programme at the time of offending. Weight may also be given to com - panies that self-report, and this can be either a mitigating or aggravating feature depending on the information provided to the prosecutor. If the company withholds information which would compromise the investigation of any individuals involved this would be a factor pointing towards prosecution. Similarly, early self-reporting could be a mitigating factor, but the prosecutor will consider to what extent not self-reporting ear - lier might have jeopardised any investigation
Wales though some civil or regulatory sanctions may apply where there are breaches of relevant codes of practice that cover types of corruption that do not amount to criminal offences. States that have been subject to the bribery and cor - ruption of their officials may take civil proceed - ings and seek damages against the corporate involved. As was seen relatively recently in Federal Repub - lic of Nigeria v SFO and Glencore Energy UK Ltd [2022] EWCR 2, there is basically no scope for a non-party to make an application for compensa - tion following a criminal conviction if a prosecu - tor has chosen not to make such an applica - tion. In that case, the Federal Republic of Nigeria attempted to apply for a compensation order for offences of bribery of Nigerian officials commit - ted by the corporate Glencore after the SFO had declined to do so as part of the corporate’s sen - tencing. In any event, if an application for com - pensation were to involve complex explorations of facts and law (including the calling of further evidence) it is unlikely that a criminal court would undertake that exercise (see R v Bewick [2007] EWCA Crim 3297). 7.2 Enforcement Bodies Enforcement of high-level bribery and corruption is led by the Serious Fraud Office which is a non- ministerial government department. The SFO may investigate any suspected offence which appears to involve serious or complex fraud, bribery or corruption. Cases of bribery which are not serious or complex can also be enforced by the Crown Prosecution Service which is the principal agency for conducting criminal pros - ecutions in England & Wales, although the CPS have recently concluded an arguably complex Deferred Prosecution Agreement with Entain plc relating to international corruption.
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