Answer ... Yes. An individual can be prosecuted under Section 1, 2 or 6 of the Bribery Act if he or she can be shown to be responsible for the offence. But if it can be shown that the directing mind and will of the company was responsible for the bribery, then the company can be prosecuted under Section 1, 2 or 6 – either along with or instead of individuals.
However, only a company can be prosecuted under Section 7. Under Section 7 of the act, a company can be prosecuted if a person associated with it bribes another person intending to obtain or retain business for that company or to obtain or retain an advantage in the conduct of business for the company.
A ‘person associated with a company’ is defined in Section 8 as a person who performs services for or on behalf of the company – which would certainly cover management and other employees. This also covers any agents working for the company or any of its subsidiaries.
Section 7 does not require a prosecution to have taken place arising from the offences committed by the associated person. However, there must be sufficient evidence to prove the commission of such an offence to the criminal standard.
The aim of Section 7 of the Bribery Act is to compel a change in corporate culture, which is why it is wide reaching and allows for a company to be prosecuted when senior employees engage in bribery.
While there is the defence to Section 7 of having adequate procedures in place, there are no legislative provisions or guideline cases to assist with determining what constitutes adequate policies and procedures. This will depend on the facts of each particular case.
The first contested case for failure to prevent bribery was the case of R v Skansen Interiors Ltd (2018). Skansen was a UK-based company that acquired two contracts in 2013, worth a total of £6 million. The managing director paid two bribes – the first £10,000 and the second £29,000 – to the project manager at the company that was inviting tenders for the work. Despite the bribery being committed by a senior employee unbeknown to the company and the fact that the bribes were uncovered by new management – who self-reported the bribery to the National Crime Agency – Skansen was still prosecuted. The Skansen managing director and the other company’s project manager were prosecuted under the general offence of Section 1 of the Bribery Act, while Skansen was prosecuted under Section 7 for failing to prevent bribery.
To successfully defend itself, Skansen needed to show that it had adequate polices in place, but the jury found this was not the case – hence the conviction. As there is no judicial guidance as to what will constitute adequate procedures, companies should take the right advice on what could be considered adequate procedures.