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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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guide to the subject matter. Specialist advice should be sought
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The Financial Times has reported that a review of the UK Bribery Act is set to be announced next month as the UK government seeks to reduce the cost of compliance for small- and medium-sized businesses.
We have pleasure in announcing the publication of our International Guide to Anti-corruption Laws, which provides an "at a glance" summary and comparison of the key criminal and administrative corruption offences in the 22 countries featured.
The Bribery Act has made the news again following the conviction of a would be taxi driver. Earlier this week, at Minshull Street Crown Court in Manchester, Mr Mawia Mushtaq became the second person convicted of an offence under the Bribery Act by attempting to bribe a Licensing Officer.
Rolls-Royce publically announced that it has provided information to the Serious Fraud Office in relation to bribery and corruption activities that have taken place overseas amongst its intermediaries.
The Crown Prosecution Service has announced that corporate manslaughter charges are to be brought against a mining company, under the Corporate Manslaughter Act 2007.
A discussion on when and if the Crown Prosecution Service should be able to take over and put a stop to private prosecutions.
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