As under the previous UK bribery laws, facilitation payments, i.e. small bribes to facilitate routine government action, remain illegal (unless the foreign official is permitted or required to be influenced by such payments under the written law applicable in the relevant country). Further, the Guidance acknowledges that the eradication of facilitation payments is "a long term objective". However, under the Joint Prosecution Guidance pursuit of such cases will also be subject to prosecutorial discretion. Among a list of factors mitigating against prosecution are (i) a proactive approach involving self-reporting and remedial action, and (ii) a clear and appropriate policy setting out procedures to be followed if facilitation payments are requested, accompanied by adherence to such policies. This reinforces the importance of an effective compliance programme, since policies and procedures, and a culture of internal reporting, will weigh against prosecution.
By way of a short example, if a UK company acquires a Chinese manufacturing company and it is later discovered that there are ongoing retainer arrangements at the Chinese company under which payments are made to certain Chinese public officials, then (unless these officials are permitted to be influenced by these payments under Chinese law) there is no question that such activities should immediately cease. If the UK entity were to turn a blind eye or were to engage another party to continue the arrangements, it would very likely be liable for the corporate offence via that associated person. Legal counsel should be consulted immediately on discovery of any such activities, and under the Joint Prosecution Guidance self-reporting should occur. This example also highlights the importance of proper anti-corruption due diligence in respect of transactions in high risk jurisdictions and at high risk times, such as during M&A.
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