Bribery and corruption – addressing the risk

Peter Mardon Corporate Partner

It is widely accepted that corruption causes poverty and suffering, inhibits economic growth and damages business both financially and in relation to reputation.

 

1st July marks the fifth anniversary of the coming into force of the Bribery Act 2010 which introduced changes in the law that could significantly impact upon your business both in the UK and abroad. Before the Bribery Act the crime of bribery was confined to transactions involving public officials and agents but now it covers all transactions. The offence is “strict liability” so it is no defence to say that you were unaware of the bribery. The only defence is to show that you had “adequate procedures” in place to prevent bribery.

 

Anyone found guilty of an offence under the Bribery Act risks a prison sentence of up to 10 years and/or an unlimited fine.

 

A business commits an offence if a person associated with the business bribes another person for the benefit of the business. Therefore, your business would be guilty if an employee or agent bribes somebody in order to win a contract for your business. Even if you as the business owner were unaware (there is no need to prove that you were negligent or involved).

 

The only defence is to ensure that your business has adequate procedures in place. Unfortunately the Bribery Act does not define “adequate procedures” but the guidance that has been published sets out 6 principals for businesses to follow:

 

1. Proportionate procedures must be in place.

 

2. There must be top level commitment (from the directors/owners).

 

3. Risk assessments must be conducted.

 

4. Due diligence must be undertaken.

 

5. There must be good communication within the business.

 

6. Procedures and policies should be monitored and reviewed.

 

Particular risks are highlighted where you deal with the public sector, give or receive corporate hospitality and gifts and where facilitation payments (payments to public officials) are made. Such payments are commonplace in certain jurisdictions where corruption is perceived to be high, for example, the Middle East, India and China. As a business it is essential that you address the risk of bribery and corruption and we recommend the following:

 

1. Introduce a robust but proportionate anti-bribery and corruption policy.

 

2. Check out everyone that you do business with including customers, suppliers and agents. Take up references.

 

3. Appoint and train a compliance officer to take responsibility for the policy.

 

4. Ensure that all employees, customers, suppliers and agents are aware of your policy and your zero tolerance to bribery and corruption.

 

To discuss bribery and corruption in the workplace, or any other commercial law matter, please contact Peter Mardon by email petermardon@wspsolicitors.com or call 01452 411601.

 

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