New year, new rules
As we wind down for the festive break, it seems almost rude to mention topics such as "bribery" and "corruption". However, with the new Bribery Act coming into force in April, it is critical that businesses are fully prepared for its implementation. Otherwise, they may find themselves with some unpleasant surprises.
The Bribery Act 2010 provides a complete overhaul of anti-corruption law in the UK by repealing the common law offence of bribery as well as various statutory offences dating as far back as 1889. Instead, we will now have four categories of offences:
● bribing another person
● being bribed
● bribing a foreign public official
● failure of a commercial organisation to prevent third parties paying bribes on its behalf.
All four offences can be committed by a company. In addition, a director, partner or senior officer who "consents or connives" at the commission of the first three offences by an organisation may be found personally liable for that offence. Quite a sobering thought.
Interestingly, the Act does not require a prosecutor to prove an element of dishonesty or corrupt intent in order to achieve a conviction. Rather, in relation to the offence of bribing another person, it is only necessary to show that a financial or other advantage was offered, promised or given (whether directly or indirectly) to another person with the intention of inducing that person to perform improperly (or rewarding them for the improper performance of) a relevant function or activity.
What can you do? Every business needs to assess its own situation as there is no one-size-fits-all solution. However, as a general guide, you should be examining:
● whether you have an up-to-date and meaningful code of conduct and anti-corruption policy in place across all your group companies worldwide
● the extent to which these policies deal with important topics such as conflicts of interest, corporate hospitality, lobbying and political contributions and whistle-blowing
● the adequacy of board and other employee training
● payment screening and due diligence procedures in relation to third party payments
● the adequacy of the contractual representations and warranties given by third party consultants, and how well you know these third parties
● whether your board is getting sufficient management information to enable it to assess the bribery and corruption risks facing the organisation and how seriously you are responding to these risks
So, if you are making New Year resolutions, taking note of the new Bribery Act should be one of them.
Jonathan Morris is a Partner at international law firm Berwin Leighton Paisner LLP