UK: Full Steam Ahead For The Bribery Act

Last Updated: 6 April 2011
Article by Maurice Kenton

Following much press speculation and debate on the issue, the Government has announced that the Bribery Act 2010 will come into force on 1 July 2011. It has published the final version of its guidance on procedures that commercial organisations can put into place to prevent bribery, as well as a "quick start guide". At the same time the Serious Fraud Office (SFO) and the Director of Public Prosecutions (DPP) have published prosecution guidance. What does this mean for business in the UK and abroad, and have concerns surrounding the Act now been addressed?

Recap

The Bribery Act contains four offences: bribing another person, offences relating to being bribed, bribery of foreign public officials and failure of commercial organisations to prevent bribery. The last offence is of particular interest. A commercial organisation will be guilty of an offence ("the corporate offence") if a person with whom it is associated bribes another person intending to obtain or retain business for the organisation, or to obtain or retain an advantage in the conduct of business for the organisation. "Associated with" is defined broadly to mean a person who performs services for or on behalf of the organisation and will therefore encompass employees, subsidiaries and agents. The corporate offence is committed irrespective of whether the acts or omissions which form the offence take place in the UK or elsewhere. Therefore, a UK corporation may be held responsible for the acts of their foreign agents (who may only have a remote connection to them).

If it is determined that a commercial organisation has committed the offence of failing to prevent bribery, it will be a defence for the organisation to show that it had in place "adequate procedures" to prevent their associates from paying bribes. Notably, the term adequate procedures is not defined by the Act, but the Ministry of Justice (MoJ) has published guidance on procedures that can be put in place.

New guidance

The final MoJ guidance remains in the principles based form consulted on last year, and is expressed to be flexible and outcomes focussed. It is followed by a number of case studies that illustrate how the principles may be applied. These illustrations now focus on what businesses can do to assess risks and situations in advance, where as the previous draft involved examples where bribery had already occurred.

There are a number of key differences and additions, which seek to address some of the issues and concerns that have been raised about the new regime by professional commentators and in the popular press. Some of the key issues are discussed below:

Proportional and risk based approach

Firstly, the guidance seeks to make it clear with a new first principle, that a proportionate approach can be taken by businesses to implementing procedures to prevent bribery. The guidance notes that small organisations are unlikely to need such extensive procedures as a large multinational organisation, and makes clear that risk assessment procedures should be proportionate to the organisation's size and structure and nature, scale and location of its activities. It is also clear that procedures can be proportionate to the risk that a business faces of bribery, recognising that the threat of bribery varies across jurisdictions, business sectors, business partners and transactions. Principle 3 sets out commentary on the risk assessment process that a business should carry out.

This is something to be welcomed, as it makes it clearer that organisations will not be required to carry out the expensive exercise of putting together lengthy belt and braces policies and procedures where the risk of bribery is objectively speaking very low.

Having said that, it remains the case that where an associated person has committed a bribery offence, the statutory onus of establishing that its procedures were adequate rests on the company. In those circumstances all companies will wish to be able to point to a well considered and proportionate policy and the guidance will not alter that requirement.

Corporate hospitality

The guidance addresses in more detail the issue of corporate hospitality and promotional and business expenditure. The fact that this could be caught by the Act is something that has been the subject of much concern, although in fact under the outgoing law prosecutors commonly scrutinised corporate hospitality as part of any wider investigation into suspected corrupt practices. The guidance expressly states: "Bona fide hospitality and promotional, or other business expenditure which seeks to improve the image of a commercial organisation, better to present products and services, or establish cordial relations, is recognised as an established part of doing business and it is not the intention of the Act to criminalise such behaviour."

The guidance indicates that reasonable and proportionate expenditure is not intended to be prohibited, but at the same time such expenditure can be used as a bribe. In relation to a section 1 bribery offence the guidance sets out that in order to proceed with a conviction the prosecution would need to show that hospitality was intended as a bribe, and this would be judged by what a reasonable person in the UK thought.

In the context of the offence of bribing a foreign public official, the guidance states that the prosecution must be able to prove a sufficient connection between the financial or other advantage given and the intention to influence and secure business or advantage. Relevant evidence will include matters such as the type and level of advantage offered, the manner and form in which it is provided, and the level of influence the official has over awarding the business. It is unlikely the incidental provision of routine business courtesy will raise an inference that it was intended to have a direct impact on decision making particularly where it is commensurate with the reasonable and proportionate norms for the industry. Examples of what may or may not be considered acceptable are included in the guidance.

Although this commentary is very much to be welcomed and means that organisations can be more relaxed about its normal client entertaining, it remains the case that there are some shades of grey as to what will be considered by the SFO and courts to be caught by the Act.

Jurisdiction

The Act has a wide territorial reach capturing organisations formed outside the UK if they carry on business in the UK. The guidance states that whether a business is carried on in the UK will be a matter of common sense. It is specifically stated that the Government would not expect that the mere fact that a company's securities have been admitted to trading on the London Stock Exchange would in itself mean that the company would be caught by the Act. Similarly, having a UK subsidiary will not in itself mean that a parent company is carrying on business in the UK.

Facilitation payments

The guidance is expressly clear that small bribes paid to facilitate routine Government action, known as "facilitation payments" can trigger an offence. This is in contrast to the position under US legislation. The point has been raised in the press that prohibition of such payments may put UK businesses at a disadvantage compared to foreign counterparts when doing business abroad.

The guidance simply accepts that the eradication of such payments is a long-term goal. The SFO has stated prior to the guidance coming out that it will seek to address this issue by prosecuting businesses from outside the UK but which are caught by its wide jurisdiction (as discussed above). However, whether the SFO will have the resources to do so, and how the courts will interpret the jurisdiction provisions in the Act remain to be seen.

Contractors and joint ventures

The broad scope of persons committing bribery for whom the organisation could be liable was another subject of concern. The guidance now clarifies the application of the Act to members of supply chains, joint venture entities, and joint ventures conducted through contractual arrangements.

SFO guidance

A further check on the Act, to ensure that the Act is applied justly and fairly, is the SFO and DPP's prosecution guidance. In common with other criminal offences, prosecutors will only proceed with a case if it passes the evidential stage (a case that does not have sufficient evidence will not proceed, no matter how serious or sensitive it is), and secondly the public interest stage. The prosecution guidance sets out factors that will be considered at the public interest stage, and a prosecution will proceed unless the prosecutor is sure that factors against prosecution outweigh factors in favour.

Factors in favour are: a conviction is likely to attract a significant sentence; the offence is pre-meditated and may involve corruption of the person being bribed; the offence is committed to facilitate more serious offending; and those involved in the bribery take advantage of their position of authority or trust. Factors against are: the court is only likely to impose a minor penalty; the harm was minor and the result of a single incident; and there was a genuine proactive approach including self-reporting and remedial action. The MoJ guidance specifically states that where hospitality, promotional expenditure, or facilitation payments on their face trigger the Act, prosecutors will consider very carefully the public interest test.

Once again, this guidance is something to be welcomed, as it makes it clearer that one bad apple will not necessarily upset the cart. However, it is notable that self-reporting is something flagged up by the guidance. The notion of self-reporting in return for a reduced sentence is not something that sits easily with the UK courts, as has been demonstrated by recent case law (for example in the BAE Systems case).

Conclusion

The final guidance is undoubtedly an improvement on the draft and is to be welcomed, particularly in its recognition that a risk-based and proportionate approach can be taken to preventing bribery. However, Kenneth Clarke's statement that "bribery is one of those things we all know when we see it" rather leaves UK PLC to exercise its own discretion in respect of conduct that is strictly prohibited by the statute but apparently tolerable under the guidance. Whilst it may be clear what is and is not bribery at either end of the scale, there are still shades of grey in between, and no business will want to find that its interpretation of what was required of it or what it did falls on the other side of the line from the SFO. Perhaps inevitably, the guidance does not make everything completely clear. We will have to wait to see how actively the SFO pursue prosecutions under the Act in the current climate, as well as what guidance is produced by the courts in case law.

Summary of the principles:

1. Proportionate procedures – the organisation's procedures to prevent bribery must be proportionate to the risks it faces and the nature, scale and complexity of the organisations' activities. They must be clear, practical, accessible, effectively implemented and enforced.

2. Top level commitment – top-level management are committed to preventing bribery and foster a culture in which bribery is never acceptable.

3. Risk assessment – the organisation periodically assesses the nature and extent of its exposure to risks of bribery on its behalf by persons associated with it on an informed and documented basis.

4. Due diligence – the organisation applies due diligence procedures taking a proportionate and risk based approach in respect of persons who perform or will perform services on its behalf to mitigate identified risks.

5. Communication (including training) – the organisation seeks to ensure its prevention policies and procedures are embedded and understood through communication and training that is proportionate to the risks it faces.

6. Monitoring and review – the organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and makes necessary improvements.

Takeaway points on the new guidance

  • A proportionate and risk based approach is appropriate for organisations implementing adequate procedures to prevent bribery.
  • It is stated the objective of the Act is not to bring the full force of the law to bear on well run organisations that experience an isolated incidence of bribery.
  • There is a recognition that no prevention regime can prevent bribery at all times.
  • Departures from the guidance will not of itself give rise to a presumption that an organisation does not have adequate procedures (although where bribery has taken place the onus is on the organisation to show it had adequate procedures).
  • The Government states that it does not intend to prohibit bona fide reasonable and proportionate hospitality.
  • The jurisdictional reach of the Act is wide, but is not intended to capture companies due to the mere fact that they have securities trading on the London Stock Exchange or that a foreign parent has a UK subsidiary.
  • Facilitation payments are expressly prohibited by the Act.
  • In circumstances where individuals have no alternative to make payments to protect against loss of life, limb or liberty the defence of duress is likely to be available.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright (Middle East) LLP
Charles Russell Speechlys LLP
Kemp Little LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright (Middle East) LLP
Charles Russell Speechlys LLP
Kemp Little LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions