A number of flaws in Australia’s anti-corruption legislation have been exposed in recent years, and are detailed in the OECD’s Phase 4 Report mentioned earlier. The following are some of them: The present foreign bribery offence is complicated and difficult for prosecutors to prove, requiring proof of default or nominated physical and fault elements for each offence. There is no strict liability corporate offence of failing to prevent foreign bribery, as there is in the UK under Section 7 of the Bribery Act. Because there is no plan for deferred prosecution, voluntary corporate self-reporting is restricted; and There is no single dedicated enforcement agency focusing on significant and organized financial crime (with sufficient experience, resources, and budget).
In its 2016 Phase 3 study of Belgium, the OECD identified a number of flaws in the country’s anti-corruption legislation, including: the lack of explicit regulatory law on corruption prevention; the criterion of dual criminality in order to allow Belgian courts extraterritoriality powers and to proceed with requests for mutual legal help from various nations; the statute of limitations is too short to enable enough time to pursue foreign corruption investigations and prosecutions; the insufficiency of whistleblower protection in the private sector; and the criminal settlement process’s lack of transparency.
A recent parliamentary report recommends that the French government take a number of steps in relation to current anti-corruption legislation, including increased resources for fighting corruption, a settlement agreement, and rules governing legal entity liability, in order to better protect France from extraterritorial application of foreign laws (such as the FCPA). GRECO and the OECD have also encouraged France to continue its efforts to strengthen its armory against bribery, particularly international bribery, through their suggestions.
On the one hand, critics point to insufficient laws, while on the other, they point to deficiencies in the prosecution of corruption cases. In terms of present legislation, the rudimentary restrictions governing corporate responsibility have been criticized particularly harshly. As a result, the OECD has urged Germany to hold companies accountable for internal corruption in the same way that natural persons are, and to discipline companies effectively, appropriately, and dissuasively in the future. In other circumstances, existing corruption offenses are thought to be unduly broad. The lack of rules that would allow for more effective anti-corruption efforts is often criticized. Germany, in particular, is reminded of its lack of whistleblower protection. Because anonymous whistleblowers regularly provide crucial clues, allowing investigations into corruption cases to begin in the first place, better whistleblower protection is advised to promote a more successful battle against corruption. The OECD also suggests that rules for firms dealing with corruption charges be prepared to avoid legal confusion and facilitate effective cooperation with authorities. In the prosecution of acts of corruption, flaws are also identified. The public prosecutor’s office and the police, for example, lack adequate organizational frameworks. Furthermore, the report highlights inconsistencies in the prosecution of corruption across the country. Insufficient coordination across German states and a lack of information are blamed for the inconsistent application of the law by courts and public prosecutors. Establishing a countrywide uniform standard, according to the OECD, would ensure that existing sanctions are effectively utilized and are effective, suitable, and dissuasive. The requirement of public prosecutor’s offices to obey directives from justice ministers has been criticized by Transparency International Deutschland eV. To avoid any political influence in the prosecution of corruption, this responsibility should be repealed.
Concerns have been made by the Garda Sochána (Irish police force) and the Department of Foreign Affairs about their ability to adequately enforce corruption offenses committed overseas. The basis for these concerns is a provision in the Corruption Act that allows for “dual criminality” in the case of certain crimes committed abroad. To prosecute some offences committed outside of Ireland, the relevant conduct or offence must also be a crime under Irish law in the nation where it was committed, and certain ties to Ireland must be shown. The issue for the government is to conduct investigations and acquire adequate evidence in order to prosecute such offenses.
Switzerland, according to the OECD, lacks understandable and comprehensive whistleblower protection laws. According to the 2018 review report of the OECD Working Group: Switzerland should do more to prosecute businesses and impose harsher penalties. According to a new OECD research, private sector whistleblowers who face criminal prosecution as a result of reporting should also be protected. Several court cases have revealed a restricted understanding of both this offence and corporation liability, despite court decisions encouraging enforcement of foreign bribery. The OECD advises establishing a legislative framework to safeguard whistleblowers in the private sector. Furthermore, the OECD advises Switzerland to: guarantee that foreign bribery sanctions are effective, reasonable, and deterrent; and Details of completed foreign bribery cases should be made public.
In the case of bribery prosecution, the issue of corporate vs individual accountability has sparked criticism of how allegations are investigated and prosecuted. A firm can engage into a DPA with the SFO to avoid prosecution, but people within the corporation are not protected in the same way. Individuals are left to their own devices to defend themselves. This issue may arise as a result of the difficulty in determining the company’s governing mind and how this connects to the actions or omissions of those persons (for further information on DPAs, see question 6). However, the DPA alternative to corporate prosecution might result in a paradoxical situation in which a firm admits wrongdoing and avoids prosecution yet authorities fail to convict the people who purportedly committed the misconduct. In other cases, such as the Rolls-Royce bribery case, a DPA is reached and the firm admits to wrongdoing, but the investigation into specific people is then abandoned. This could be due to the fact that a DPA can be reached without a full code test (which prosecutors use to determine whether to charge) – that is, if the company accepts the wrongdoing without the prosecuting agency having uncovered sufficient evidence to meet the test’s evidential burden. The House of Lords Select Committee on the Bribery Act 2010 reported in March 2019 that the act is regarded as the gold standard for anti-bribery and corruption legislation around the world. The committee did, however, add the following: Small and medium-sized businesses should be provided better assistance on how to comply with the act when exporting goods and services, according to the government. A lack of coordination exists between the CPS, SFO, NCA, and other agencies, which needs to be rectified. Bribery prosecutions should be prioritized by the CPS and the SFO. The OECD Bribery Working Group chastised the UK in its 2012 report for what it called a lack of transparency surrounding choices to settle a number of bribery investigations through a civil settlement rather than prosecution.
First and foremost, we believe that whistleblowers should be protected and that confessions should be granted amnesty, even if they are made by the individual who accepted the payment. The goal of eliminating bribery and corruption is contingent on people’s good faith. So, why would someone risk a lawsuit or defamation charges in order to report a crime? Second, even if someone accepts a bribe and later regrets it due to guilt, they are still exposing the crime if they disclose it. They must undoubtedly be punished in some way, but possibly prison time should be avoided. In terms of investigating and prosecuting bribery and corruption, we believe that we must continue to support anti-bribery and anti-corruption agencies and ensure that they and other government personnel receive sufficient training on what constitutes bribery and corruption.
The FCPA has recently come under fire for allowing only bribe payers to be prosecuted, rather than bribe recipients. The Foreign Extortion Prevention Act, which would make it illegal for a foreign official to demand or accept a bribe, was recently suggested as new legislation. At this time, it is unknown whether or not this law will be passed.