SFO’s new bribery head: Lawyers must be proactive on corporate crime and DPAs

Former Norton Rose Fulbright lawyer Ben Morgan talks exclusively to The Lawyer about his new role at the SFO.

When the Bribery Act first came into force in July 2011 it was accompanied by bucket-loads of hype. Two years on, the number of prosecutions under the Act has been minimal.

But the Serious Fraud Office’s (SFO) new co-head of bribery and corruption, Ben Morgan, says this will change in time, and is calling upon companies – and their lawyers – to be proactive about dealing with any issues that might fall under the legislation.

Morgan joined the SFO in August, moving on from Norton Rose Fulbright where he was a senior associate. He had previously spent some time on secondment at the organisation, but his new, high-profile job puts him at the centre of the SFO’s fight against corporate corruption in the UK.

“What I think my background brings is to really concentrate on what the office is doing around corporate prosecutions,” Morgan tells The Lawyer. “It’s something that the office has always done, but my role is particularly appropriate in the context of concentrating on that now.”

He defends the relatively low number of prosecutions under the new Bribery Act to date, pointing out that the SFO is actually still having to deal with offences committed under the old legislation – which made it harder to bring companies to book for their misdemeanours. “We’re methodically dealing with what we have,” he adds.

Although he welcomes the introduction of the Bribery Act, Morgan – like others – feels that more could still be done to harmonise the regulations governing corporate crime, bringing together more offences than just bribery and corruption. The lack of such harmonisation, he says, is “totally illogical”.

“The time’s come for us to have a legal system that catches up with the Bribery Act,” he argues. “Not having it makes us stand out like a sore thumb. We haven’t had it because there hasn’t been an appetite for it in the business community and also politically.” It is essential, Morgan adds, to make sure that the UK’s legislation helps make businesses morally sound as well as economically sound.

Within the current system, however, Morgan is optimistic that the new ability – from next February – to enter into deferred prosecution agreements (DPAs) with companies will be a significant help to the SFO’s bribery and corruption team. DPAs give companies the chance to negotiate settlements with the SFO, agreeing to engage and cooperate with investigations with the chance to avoid prosecutions.

He also thinks that the Bribery Act has had a positive impact already, encouraging corporates to be more responsible. “It’s had a fantastic effect on conduct and that’s more important than prosecution,” Morgan says.

Lawyers can play a major role in this behaviour-driven approach to improving the corporate attitude to corruption issues. At the core, thinks Morgan, lawyers need to fully understand the legislation, including the role of DPAs. Both in-house counsel and external advisers also need to be ready to test what a company is doing in this area – and if necessary, report it to the SFO. If the SFO knocks on a business’s door, he adds, “it’s because we think we can prosecute”.

“The role a lawyer ought to be playing is giving difficult but true advice to a company about its true liability and its true position. It’s honestly evaluating what’s happened and then sensibly address how to deal with it,” Morgan adds.

Returning to the question of his own background, Morgan says within the SFO there is definitely a role to play for more lawyers with City experience. He praises the “absolute quality” of those already in his team – including accountants, investigators and lawyers with a criminal background – but thinks that particularly when it comes to corporate corruption, having a commercial background can be an asset.

“There’s a real advantage to combine these core criminal skills with more commercial skills. This is the top scale of complex legal work for a lawyer.”

While quick to emphasise that he enjoyed his previous private practice career too, Morgan says one of the greatest delights of his SFO role so far is the sheer job satisfaction he gets.

”You can honestly feel when you go home on the train that this is worth it,” he concludes.