Fascinating article by the team at White & Case on the new guidelines recently released by the French Anti-corruption Agency ("AFA") and the National Financial Prosecution Office ("PNF") regarding the implementation of the judicial agreement in the public interest ("CJIP"). This is often referred to as the French DPA (Deferred Prosecution Agreement).
It is really interesting to see how crucial a thorough independent internal investigation will be to allow companies to benefit from the CJIP. Most investigations of this nature require an element of both forensic accounting and forensic technology investigative skills to ensure that they are comprehensively covered.
Both forensic accounting and forensic technology investigations have the same fundamental goal – to prove exactly what happened during a given period, and to attribute actions to a specific individual or group of people, allowing effective and appropriate response. They both rely on the acquisition and analysis of data in an efficient way. We live in a digital age, and every action leaves a digital footprint which can be unravelled. Even in exceptional circumstances - such as a computer being tampered with - forensic evidence can be recovered and help trace back what happened and when. In short, using forensic tools investigators can find data even when it may have seemingly been destroyed.
Investigations of any kind often include both financial data analytics, for instance, looking at payment trends, and a review of corporate email. Written communications between parties and instructions given often play a significant part in piecing together the whole story. Whilst most people are aware that email can be recovered and reviewed, many still use it as part of an improper purpose.
Therefore, to look to take advantage of a CJIP, companies must ensure that they have the right team in place, including lawyers, forensic accountants and forensic technologists.
The cooperation of the corporation is a prerequisite for the conclusion of a CJIP, and it is taken into account to determine the amount of the public interest fine. In this regard, the spontaneous disclosure of the facts to the PNF by the corporation, if made within a reasonable time, is usually taken into account favourably, both to allow the recourse to the CJIP and as a mitigating factor in assessing the amount of the fine. In addition, the PNF expects that the corporation actively participates to the disclosure of the facts through an internal investigation or an audit of both the facts and the shortcomings of the compliance system that have favoured the perpetration of the criminal offence. The findings of this investigation must be transmitted to the prosecutor within a reasonable time.