New revisions by the US Department of Justice regarding the application of criminal law to corporate crimes
The creation in 2021 by the United States Attorney General’s Office of the Advisory Commission on Corporate Crime aims to provide greater clarity on the tools available to prosecutors for the investigation of natural and legal persons who commit crimes within a corporation. Along these lines, the memorandum published by the US Department of Justice, in particular by the Office of the Assistant Attorney General on 15 September 2022, provides new elements for US prosecutors to assess in order to ensure the criminal liability of natural and legal persons for corporate crime.
Firstly, with regard to determining the liability of natural persons, it is established that the priority is to investigate those persons who commit and take advantage of offences committed within the company. In this respect, it is important that the company itself voluntarily provides the public prosecutor’s office with relevant, non-privileged information on individual misconduct quickly and immediately. In this way, the legal entity could benefit from full cooperation in the determination of its penalty.
Next, the elements to be taken into account in the assessment of the possible criminal liability of legal persons are determined. The need to assess possible offences committed previously, whether criminal or not, for which the legal person has been convicted, is included, taking into account the relevance and nature of each one. Thus, reference is also made to cooperation by the company with the Public Prosecutor’s Office, as mentioned above.
It is also established that the existence of a Compliance Programme has a direct impact on the criminal liability of the legal person under investigation, although the mere existence of a Compliance programme does not exempt the legal person from criminal liability. Therefore, it is determined that the Prosecutor’s Office will assess the adequacy and effectiveness of the Compliance Programme at the time of the commission of the crime and when deciding whether to charge the legal entity in the criminal proceedings. Thus, the following aspects should be assessed:
- The legal entity’s commitment to ethics and compliance, at all levels of the entity itself.
- The design of the Compliance programme, and the resources allocated to it, its promotion and implementation. In this regard, consideration will be given to (i) the method used to identify and calculate risk, (ii) the procedures and policies to mitigate risks, (iii) how disciplinary decisions are taken in the event of non-compliance, and (iv) the involvement of senior management in enforcing compliance with the Compliance Programme itself.
- The possible reward systems that have been established in the corporation within the framework of the Compliance Programme, in order to encourage compliance with it. For this reason, it is considered beneficial to have reward systems within the framework of the legal person, through which members who comply with the established rules and promote the Compliance Programme are rewarded, while those members who do not follow the Compliance guidelines established by the legal person are sanctioned.
- The existence of policies to regulate the use of personal technology devices and messaging platforms.
Finally, the possibility of imposing an independent compliance supervisor on the legal person in the framework of a criminal decision for a certain period of time is also foreseen, in order to rectify the compliance violations that have been observed in the framework of the investigation and to reduce the risk of future breaches. A number of factors are provided to determine the appropriateness of imposing a supervisor. For example, among others: (i) whether during the investigation and prior to the resolution, the legal person has already improved its Compliance Programme; (ii) whether the infringing conduct was a one-off and isolated event or is a recurrent conduct within the legal person; or, (iii) whether the members responsible for supervising the Compliance Programme were involved in the sanctioned conduct.
In short, special emphasis is placed on the need to assess the existing Compliance Programme of the legal entity on a case-by-case basis in order to determine and modulate its criminal liability.
The complete document is available here.
Compliance Department of Molins Defensa Penal.