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Corporates facing criminal penalties need certainty when self-reporting

24 June 2011

On Monday of this week I reported in the Financial Times the increasing reliance by the OFT on whistleblowers who come to the OFT through its leniency programme to reveal details of anti-competitive arrangements in exchange for immunity from civil fines and criminal penalties.

The leniency programme is perhaps the most important weapon in the OFT's armoury in detecting cartel activity. By their very nature, the most heinous of anti-competitive agreements tend to be secret and whilst almost all will leave a trail, finding it without inside knowledge can be almost impossible.

Hence there are very good policy reasons why the leniency programme exists. The UK is not unique in this; with comparable programmes in existence in the USA, at EU level and in almost all Member States. Equally, whilst the prize of total immunity for all applicants may seem like a risk worth taking for all potential cartelists, it should not be forgotten that this does not preclude third parties from taking subsequent damages actions (including the possibility of triple damages for any international cartels with a US element). Nor does it address the reputational risk to the business going forward.

While a formal leniency regime exists at the OFT, I understand that no such system is proposed by the SFO in relation to corporate bribery and corruption. The SFO's own paper on self-reporting suggests the possibility of leniency if a corporate self-reports evidence of bribery but it certainly does not go as far as the OFT's programme. With the Bribery Act 2010 going live on 1 July it would make sense for the SFO to update and formalise its self-reporting regime to give further clarity to corporates facing yet another regulatory burden with potential criminal liabilities.