As the UK Bribery Act will come into force in April 2011,
corporate entities (including partnerships) which carry on part of
their business in the UK need to ensure that by that date they have
in place adequate procedures which may provide a defence to the
strict liability offence of failure to prevent bribery.
On 14 September 2010 the UK Ministry of Justice
(MOJ) launched its consultation on the form and
content of the proposed guidance about procedures which commercial
organisations can put in place to prevent bribery. The consultation
period will end on 8 November 2010 and the government proposes to
publish the guidance under section 9 of the Act early in the New
The new offence for corporate entities of failure to prevent
bribery being carried out on their behalf is an offence of strict
liability. That is to say if a corrupt act is carried out by the
corporate or on its behalf by someone performing services for it
the corporate will automatically be guilty of the offence. The
offence is very wide because it applies to all corporates who carry
on business or part of their business in the UK. This can be
through a subsidiary, a branch or through third parties engaged to
operate on their behalf in the UK. The offence applies to any
corrupt conduct which occurs either in or outside the UK. All that
is required is that the corporate carries on part of its business
in the UK.
The only defence to this offence is to show that the corporate
had adequate procedures in place designed to prevent bribery being
carried out on its behalf. It is therefore of paramount importance
that corporates have adequate procedures in place.
The Consultation Process
The MOJ in its
consultation paper on the proposed guidance states that a
failure to prevent bribery under section 7 of the Act
"reflects a general recognition that there is an important
role to be played by business itself in ensuring that commerce is
undertaken in an open and transparent manner. The new law will
introduce a clear and robust approach and is intended to encourage
commercial organisations to take steps to address the risks of
Adequate Procedures, Guidance and Consultation Update
Our London office has published an update on the consultation
process and the "Six Principles for Bribery Prevention"
formulated by the government. That can be viewed
Responses to the consultation paper can be made direct to the
MOJ and we are happy to assist with those responses. The MOJ will
also be holding a number of open discussion seminars to discuss
views on the form and content of the proposed guidance. The only
seminar to take place in London will be on 4 October 2010. It will
be hosted by Norton Rose LLP and Transparency International UK
together with the Ministry of Justice. Further details of this
seminar and other seminars can be obtained from the
Norton Rose Group operates a Global Business Ethics and
Anti-Corruption group which specialises in anti-bribery compliance
generally and the development of compliance programs which can be
put in place. Please contact us if you require assistance in
relation to anti-bribery compliance or if you want further
information concerning the consultation process launched by the MOJ
and in particular, the seminar to be held on 4 October 2010 in
London. If you would like an invitation to attend the seminar
please let us know.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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