The cost of white collar prosecutions is vast, the complexity unfathomable, and the Government's willingness to move against the worst culprits highly constrained.
So enter, stage right, the Deferred Prosecution Agreement, or DPA. This is the new toolkit which will give prosecutors the ability to embarrass businesses and take some of their money but not have to put the Government, the courts or the company through the agony of a high profile trial.
There will, of course, be some show trials for politically sensitive issues, like the Libor case now going through the courts. The SFO cannot walk away from all its obligations to send out a message to City wrongdoers and misbehaving corrupt executives.
But smaller-scale cases will be settled with a judicial slap over the wrist and a fat fine, with a promise of future good behaviour policed by a monitoring accountant.
The new justice may be pragmatic, but it ought to be cost-effective. That is the message conveyed by the passing into law on Monday of the Crime and Courts Act 2013. DPAs, allowed by the new law, will be offered to companies engaging in bribery or fraud who come clean. Companies will not get the DPA until they have haggled with prosecutors as to how much they need to know about a crime to prevent the company's reputation from getting sullied and from the board being drawn in, even prosecuted. A crown court judge mediates to ensure fair play.
Companies, of course, will be agreeing to behave well when they reach such an agreement. So if they are found misbehaving again, they will be dragged back to court, and most likely made to face prosecution.
Naturally that is not what the Government intends by the new process, which is meant to keep companies out of the courts. This is law enforcement American-style and it has given rise to much cynicism. The process is brand new to the UK but the goal is to raise the scale of settlements to US multi-million proportions on the cheap, so ensuring the scales of justice pay for themselves.
This tango between companies and enforcers starts with the company bringing evidence of an offence to the authorities. "Companies will need to be brave", says Vivian Robinson QC, the former adviser to the Serious Fraud Office. "At the moment the matter is very untested, and not every company will want to give them that evidence, unless they can feel reasonably confident that it won't be used to prosecute them at a later stage". He says companies are under no obligation to report corruption although lawyers would strongly encourage them to.
Companies who seek to participate in the DPA process will have no choice but to 'fess up, says Ben Morgan, the SFO's head against bribery and corruption, and he urges companies to approach the SFO with evidence of an offence as quickly as possible after its discovery. "I find it very hard to imagine that we would offer a DPA to a company that hasn't self-reported its own conduct", he says.
"The more transparent, open and frank a company is, the more likely that a DPA is possible. If a company has committed a criminal offence and become aware of it and have not engaged with us on a frank and risk-taking basis, I would be surprised if we have the discussion".
Prosecutors will seek to control the company's internal investigation, to make sure it is not biased or designed to clear the board of responsibility. Morgan, who joined the SFO from City lawyers Norton Rose, says they will test the evidence to ensure it tells the whole story.
Evidence presented to the SFO may land individuals, even board directors, in the dock. Barry Vitou, a lawyer at City firm Pinsent Masons, says: "Companies will be required to bring information about individuals to mitigate economic outcomes. They are going to provide information about people engaged in wrongdoing".
The SFO is alert to the possibility directors may distort the findings of an investigation to save their skins, said one lawyer. He warned: "Companies may think they can throw to the wolves some low- level executives.There is a danger the minnows will be made to pay the price for the behaviour of the directors. The sales director who paid the bribe will get handed over to the authorities by the board who turned a blind eye to what he was doing and should take the rap".
Companies who play by the new rules, the carrot rather than the stick, have a considerable say over the outcome. For example, they can walk away from a deal proposed by the SFO if they believe they are being pushed o admit to more than they believe is fair. The SFO can walk if they detect a lack of frankness.
Ben Morgan says: "We don't have to accept a deal if it doesn't capture the wrongdoing. The company doesn't have to accept if it feels we are being overly prescriptive".
The authorities need to feel it is an adequate punishment while the company must feel the SFO has not overreached its powers and "bullied them", says Morgan. "It is then out of our hands and the court must decide if it is fair. The proposed agreement is scrutinised by a judge, in open court".
Companies may be required to clear out their boards of directors and introduce a new culture, says the SFO. But the embarrassment factor will be mitigated by the length of time the parties to a DPA take to reach a waterproof legal agreement. By that stage, the heat will likely have gone out of the original offence.
The SFO has agreed to make all judicial hearings secret to encourage companies to participate and a judge must give his approval at the end to a deal which is largely agreed behind closed doors, though Morgan says it is "retrospectively transparent". Patrick Rappo, partner at Steptoe & Johnson, and former joint head of the bribery and corruption divisions at the SFO, says DPAs "will only be available under tightly proscribed circumstances with full judicial supervision".
For a prosecutorial system that is underfunded and unable to tackle today's growing white collar crime crisis, the DPA comes as a sticking plaster. It does nothing to staunch the toxicity of City crime.Reuse content