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The Bribery Act 2010 will now come into force on 1 July 2011.
In keeping with this timeline, on 30 March 2011 the Ministry of Justice published "The Bribery Act 2010 Guidance". This describes the procedures that relevant businesses can put in place to prevent bribery.
If an organisation can prove that it has "adequate procedures" in place, it has a defence to the offence of failing to prevent bribery (which would otherwise attract unlimited fines and inherent reputational damage).
On the same day, the Director of Public Prosecutions and the Director of the Serious Fraud Office also issued their "Joint Prosecution Guidance". This sets out their approach to deciding whether to bring prosecutions under the Act. It confirms that, to rely on the defence, each organisation must prove (on the balance of probabilities) that it had "adequate procedures" in place.
The Ministry of Justice's guidance strongly advocates a risk-based and proportionate approach to adopting "adequate procedures". It acknowledges that different procedures will be appropriate depending on:
the size of the organisation;
the threats from the sectors and jurisdictions in which it does business; and
the nature of its business partners and transactions.
The high-profile issues of facilitation payments and hospitality and promotional expenditure are also given particular focus.
Organisations have a short window of time, before the Act is in force, to consider the guidance now available, and to assess and address the bribery and corruption risks to their business in order to implement appropriate procedures to prevent bribery.
We shall provide more detailed commentary on the published guidance next month. In the meantime, if you would like any help in putting preventative policies and measures in place, or delivering training on the Act, please contact Caroline Copeland.
Caroline Copeland
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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