Bribery Act Presenter: Nigel Moore. Date: 13 June 2011

Transcription

1 Bribery Act 2010 Presenter: Nigel Moore Date: 13 June 2011

2 Older Law PUBLIC BODIES CORUPT PRACTICES ACT 1889 PREVENTION OF CORRUPTION ACTS 1906 and now swept away

3 International Pressure UK/Europe criticised for not taking Bribery seriously US Foreign & Corrupt Practitioners Act 1977 Now we have the most strict regulation in the World!

4 Bribery Act 2010 Royal Assent on 8 April 2010 but.. Important Date: 1st July 2011

5 Easy Offences 1. Bribing another person (section 1) 2. Being bribed (section 2)

6 New Offences Bribing foreign public official (section 6) 6(1) A person ( P ) who bribes a foreign public official ( F ) is guilty of an offence if P s intention is to influence F in F s capacity as a foreign public official.

7 Foreign Public Official.holds a legislative, administrative or judicial position of any find.. Pretty much anyone in a suit, a uniform or wearing a badge with his name on it - Probably not McDonalds!

8 New Offences Failure of Commercial Organisations to prevent Bribery (section 7). Brand new offence Goes further and wider than equivalent provisions in other jurisdictions.

9 Section 7 application relevant commercial organisation means (a) a body which is incorporated under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere), (b) a partnership which is formed under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere) For the purposes of this section, a trade or profession is a business

10 Section 7 What is the crime? Partnership/commercial organisation liable if a person associated with them bribes another intending To obtain or retain business or To obtain or retain an advantage in the conduct of business And the commercial organisation does not have in place adequate procedures to protect against this

11 Section 7(1) S7(1) provides a relevant commercial organisation is guilty of an offence if a person associated with the organisation bribes another person intending to obtain or retain a business advantage for the organisation Associated person includes people who perform services for or on behalf of the organisation regardless of their capacity.. Employees Agents Distributors J.V. partners Contractors Subsidiaries Someone with whom you are in a contractual relation with

12 Elements 1. Strict liability no requirement to show fault 2. Extra territorial in nature worldwide application to business either incorporated or carrying on business in UK just listed on our stock exchange is enough. Need to have a demonstrable business presence

13 Defences? S7(2).adequate procedures designed to prevent persons associated with [the Company] from undertaking such conduct. What are adequate procedures?

14 Guiding Principles Not a one size fits all Organisation size will be a factor Non-prescriptive nature

15 Principle 1 Proportionate procedures Procedures must be proportionate to the bribery risks an organisation faces

16 Principle 2 Top Level Commitment Have it and show it!

17 Principle 3 Risk assessment Evolves as your business goes into new and different markets Be pragmatic and commit reasonable resources Watch for countries where bribery is endemic

18 Principle 4 Due Diligence

19 Principle 5 Communication and training Relay the message to the troops..and you had better look like you mean it Hammer the message home at every opportunity

20 Principle 6 Monitoring and review

21 Prosecution SFO intends to enforce Act vigorously Default position is to prosecute Must be realistic prospect of conviction Must be in the public interest to do so

22 What are the consequences? PROSECUTION Must be sanctioned by DPP, Director of SFO or Director of HMRC

23 Factors favouring prosecution Large or repeat payments Planned facilitation payments Active corruption Failure to adhere to policies

24 Factors against prosecution Small, single payment Payment identified via self-audit and reporting Adoption of correct procedures Payer vulnerable when payment demanded

25 Company guilty of offence May secure a settlement with prosecutors if:- Confesses to wrong-doing Demonstrates system changes Removed staff found to be at fault therefore build it into Service Contracts

26 Bribery Act - defences Whistle blowing is to be encouraged Self reporting may result in more lenient sentencing

27 Bribery Act defences Adequate procedures in place Ethics / compliance office to implement policies No tangible connection to the bribe

28 Corporate hospitality Accepted part of modern business practice Proportionate and reasonable Subjective assessment Adopt risk-based approach

29 Referral fees a bribe? They are not hospitality What if you offer an introductory rate of 0? Do they amount to facilitation payments?

30 Bribery Act 2010 See the Bribery Act Guidance at the Ministry of Justice Website on the link below: making-reviewing-law/bribery-act-2010-guidance.pdf