Page 13 - TheManger09092011

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Leading criminal lawyer Jeremy Summers looks at the recently introduced Bribery Act
and assesses its potential impact on UK executives and businesses
and debate
the Bribery Act 2010 came into force
on July 1st 2011. Te Government
hopes that it will transform the way
business is done, and so has required
companies to take greater
responsibility for the conduct of
people that act on their behalf. To
back this up, the penalties for bribery
are now harsher and include a
maximum sentence of 10 years and/or
an unlimited fne. It is important that
all business executives have a clear
understanding of what the act says
and what it means to them.
Te act has three principal features:
it repeals the existing corruption
ofences (although these remain
relevant for conduct occurring up to
June 30th 2011); it is intended to
make it easier to prosecute cases of
corruption; and it brings in a new
ofence of failing to prevent bribery.
It is this last point where the
greatest change is intended to lie.
Prior to June 30th 2011, if an
executive at your company had acted
corruptly then the company, provided
they had not known of the activities,
would not have needed to be
concerned about liability. Since July
1st, that position has changed and the
company can be found liable – and
risk an unlimited fne – for failing to
prevent bribery, unless the company
can show that it had adequate
procedures in place designed to
prevent such conduct.
Te act creates four new ofences.
Tere are two core ofences directed at
individuals targeting the paying of
bribes (section 1) and receiving bribes
(section 2). In essence these ofences
will be committed if a person seeks to
induce someone else to perform a
relevant function or activity
improperly, or secure a reward for
acting improperly. An obvious
example would be a person making a
payment to someone to unfairly
secure the award of a contract or,
equally, requesting a payment in
return for awarding a contract. Both
ofences are deliberately wide and can
be committed even if all the relevant
conduct occurs overseas.
A further ofence (section 6) makes
it unlawful to bribe a foreign public
ofcial intending to infuence him or
her acting in their ofcial capacity.
Finally, the new corporate ofence
(section 7) brings in the new level of
corporate criminal liability. If a person
associated with a commercial
organisation can be shown to have
committed an ofence under either
section 1 (paying a bribe) or section 6
(bribing a foreign public ofcial), then
the organisation will be guilty of
failing to prevent bribery, unless it can
show it had adequate procedures in
place to prevent bribery.
But what exactly will constitute
adequate procedures? Tis is the issue
that has caused most debate and
which will continue to do so until
there is certainty as to how the act will
be interpreted by the courts.
In an efort to allay some of the
concerns voiced by business, the
Ministry of Justice has published
guidance detailing what may
constitute adequate procedures
(for further details, go online to
Tis makes it clear that there is no
‘one size fts all’ approach to
compliance and that companies must
therefore tailor their individual
systems to the risks that they face.
must now
tailor their
systems to
the risks that
they face”
Jeremy Summers is a leading
white collar criminal lawyer
at Russell Jones & Walker, the
LMA’s solicitors, with more than
20 years’ experience in advising
individuals and businesses in both
London and Hong Kong.