Bribery Act Update
It is now a little over a year since the Bribery Act came into force and there have been few significant reported cases. However, the law remains important and we will undoubtedly see more prosecutions for bribery in the coming years. It is now common practice for businesses to require contractors and suppliers to comply with anti-corruption policies and to have anti-corruption clauses in contracts as standard.
Every business operating in the UK should ensure that they and their staff are aware of this important legislation and that they have in place adequate policies and training to limit their risk of involvement in any bribery or corruption anywhere in the world. It is worth noting that a business can be guilty of the offence of failing to prevent bribery if it does not have in place adequate measures to prevent bribery.
The Serious Fraud Office (SFO), which is responsible for investigating and prosecuting most breaches of the Bribery Act, has recently updated the guidance on its enforcement policy. This, in part, reflects a general change in approach by the SFO which has a new Director General. Two key changes are:
• Facilitation Payments – These are (usually small) payments made to an official to perform or speed up performance of a service. Examples include payments made to an official to speed up the processing of papers or release of goods. It was always clear that such payments are illegal bribes under UK law unlike in the US where they may be permitted.
Previously there was clear acceptance by the SFO and others that in some countries it is difficult to avoid paying these and that the SFO would not prosecute where businesses were taking steps to move towards compliance.
The stated position now is simply that the SFO will prosecute where it believes that there is a reasonable prospect of conviction and that it is in the public interest to do so.
• Self Reporting – Previously the SFO encouraged organisations to self-report potential breaches of the Bribery Act and stated that it would generally seek civil rather than criminal redress for breaches that had been self-reported. This guidance has now been revoked and replaced with the same stated position as above that the SFO will prosecute where it believes that there is a reasonable prospect of conviction and that it is in the public interest to do so.
There is still a role for self-reporting and it may be taken into account in the SFO’s decision as to whether to prosecute alongside other factors relating to the conduct of the business. However, self-reporting provides no guarantee that there will not be a prosecution and any decisions on this will need careful consideration.
These changes do not appear to indicate a significant change in attitude to the Bribery Act but do remove some of the comfort that was provided when the legislation was first introduced.
One area that had caused significant concern for businesses was in relation to corporate hospitality and entertainment. The SFO does repeat the comfort that was given previously with its statement that “Bona fide hospitality or promotional or other legitimate business expenditure is recognised as an established and important part of doing business.”.