Written 14th May 2014 by Olliers Solicitors

According to the Ministry of Justice, The Bribery Act ‘reforms the criminal law to provide a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home and abroad’.

Under the Act, which received Royal Assent on 8th April 2010, a company can be liable for the behaviour of employees, if it can be shown that the company had insufficient measures in place to prevent bribery.

Bribery in the Workplace

It need not matter whether the company had actual knowledge of the actions of employees engaged in bribery, the emphasis is now upon whether the company had in place adequate measures to prevent it.

What’s more although the legislation is not retrospective, companies need to be aware of its provisions and have in place appropriate safeguards, in time for enactment.

There are four types of offence that can be committed:

  1. offering, promising or giving a bribe,
  2. requesting, agreeing to receive or accepting a bribe,
  3. bribing a foreign public official,
  4. failure by a commercial organisation to prevent a bribe being paid for or on its behalf.

It is a defence for a business to prove that it had in place procedures designed to prevent bribery. As Lord Bach stated on behalf of the MoJ: “it would be wrong to leave organisations open to a heavy fine if a rogue element bribes on behalf of the organisation when those who manage it can show that they have put in place procedures designed to prevent bribery on its behalf”.

There is in effect a reverse burden of proof, whereby once an offence of bribery is found to have taken place the onus is upon the organisation to show that this has happened in spite of the measures in place to prevent it, and that the bribery was down to the so called ‘rogue element’.

Adequate Procedures

The key issue therefore is the level and adequacy of procedures required for each organisation.

Although the MoJ has stated that guidance on adequate measures will be published this is yet to happen. Moreover the adequacy of measures required will vary from one organisation to another.

The GC100 group of senior legal officers from over 85 FTSE 100 Companies has issued a draft paper which the MoJ has suggested may form the basis of Government guidance. It covers the following areas:

  • Board Responsibility for anti corruption programme
  • Appointment of Compliance Officer
  • An ethical code of conduct
  • Risk management procedures
  • Employment procedures (vetting,contractual obligations, disciplinary provisions)
  • Gifts/hospitality policy
  • Training
  • Decision making process
  • Financial controls (eg via internal audit)
  • Supply chain management
  • Reporting and investigation procedures

With maximum sentences of 10 years imprisonment for individuals and unlimited fines combined with disbarment from EU tenders for organisations involved in bribery this is legislation that cannot be ignored.

Matthew Claughton

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