Aziz Rahman of Rahman Ravelli
Aziz Rahman, of award-winning business crime solicitors Rahman Ravelli, explains how those in business can take the initiative if they believe wrongdoing has been committed.
Everybody knows that if people suspect that a criminal act has been committed they can report it to the police. Yet when it comes to business crime, there are a number of options; some of which can give the companies or individuals affected more scope for handling the matter in the way that suits them best.
Business crime can be carried out by an employee or someone else working with the company or individual that the crime is committed against. Obvious examples would be theft or fraud.
Yet it can also be the case that a person or company comes to suspect that crime is being committed on their behalf by one of their employees, representatives or associates. One such situation would be bribery where, for example, a company employee may bribe an official or other third party. This could result in the company winning the contract and that employee possibly gaining a bonus. Under the UK Bribery Act, however, it could also lead to unlimited fines and up to ten years in prison for anyone who committed the crime or is adjudged to have not done enough to prevent it.
There are a number of reasons, therefore, why those in business have to be aware of how they can act if they believe business crime has been committed in their workplace.
If an investigation is carried out and the indications are that a crime has been committed, the matter can be reported to the police.
But there is also the option of bringing civil proceedings against the person believed to have committed the offence in order to recoup any losses incurred. Another option is bringing a private prosecution, under the Prosecution Offences Act 1985, against that person.
All three options have their own advantages. Leaving it to the police means less of a burden on those who reported the crime. But a private prosecution may give you greater control over proceedings than leaving it to the police and may act as a deterrent to anyone else considering committing a similar offence. And civil proceedings can be brought even if the matter has been reported to the police or is the subject of a private prosecution.
But before any course of action is chosen, the initial allegations need to be assessed and subjected to some form of internal investigation; ideally by someone with legal expertise who can uncover and follow the evidence.
Such legal expertise will not only help determine what, if any, illegal activity has been carried out. It can also recommend the best course of action for the individual or business that the offence has been committed against.
This requires a detailed working knowledge of business crime law: an area of law that is challenging and has been subject to some major changes in recent years.
Such knowledge of the law and the options it offers can prove extremely important. It can be the case that investigating suspicions of an individual’s wrongdoing can lead to the discovery that the company is criminally liable for what has happened.
If we consider the bribery example I mentioned earlier, the person who committed the bribery is obviously liable. But the Bribery Act will also hold the company responsible for what has gone on if that company cannot prove that it had adequate procedures in place to prevent bribery being committed.
Such circumstances require legal advice on how to deal with the individual, how and when to report matters to the authorities and what to do to prevent any repeat problems.
If criminal activity that implicates the company is discovered during internal investigations, the only real option is to self-report it to the authorities. Doing this in the right way can have a huge effect on whether or not the company is prosecuted and the size of any penalties.
The time taken to report the criminal behaviour, whether the authorities would have discovered it themselves, the quality of any procedures that were in place to prevent wrongdoing and how quickly the initial suspicions were investigated are all issues that the authorities will assess when considering what action to take.
Advice has to be taken, therefore, on how to proceed the moment any suspicions of wrongdoing are raised.
One of the major legal changes I referred to earlier is the introduction of the deferred prosecution agreement (DPA) into UK law. This involves a company admitting it has been involved in criminal behaviour and agreeing to meet certain conditions to avoid being prosecuted.
Changing working practices or staff, paying fines or introducing measures to prevent future wrongdoing are all conditions that can be written into a DPA. If the company meets these conditions for a set period, it avoids prosecution. If it does not, it is prosecuted.
Deciding to seek a DPA and then – if a DPA is offered - negotiating the terms of one are situations that require legal expertise, experience of dealing with investigating authorities and no small amount of bargaining skills.
Earlier this year, Rolls-Royce secured a very favourable DPA following a Serious Fraud Office (SFO) investigation into bribery allegations involving many millions of pounds in numerous countries. This favourable outcome was due largely to the way the aircraft engine maker cooperated with the authorities, investigated the problems itself, showed a determination to put right the wrongs and negotiated carefully with the SFO.
Not every case of workplace wrongdoing will be on the scale of Rolls-Royce. But the outcome of that case indicates the value of taking the right course of action as soon as wrongdoing becomes apparent.
Aziz Rahman is founder of Rahman Ravelli: a top-ranked business crime law firm in national and international legal guides.