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
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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