Bribery Law
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Bribery Law
Barristers at St Pauls Chambers have experience with bribery and corruption cases, advising internal corporate investigations, the self-report process, assistance with the Serious Fraud Office (SFO) investigation, negotiation and conclusion of a Deferred Prosecution Agreement (DPA), and the monitoring of compliance with the terms of a DPA.
Those considering the first step in the process, a self-report, should consider the SFO Guidance on Corporate Self Reporting. Any such action should be prompt and part of a proactive corporate management approach when offending is first discovered. Guidance on whether a DPA will be considered to be appropriate requires the consideration of three CPS documents: The Code for Crown Prosecutors, The Joint Prosecution Guidance on Corporate Prosecutions, and The Bribery Guidance. The SFO & CPS have produced the DPA Code of Practice which provides a framework for those negotiating, applying for and monitoring a DPA.
St Pauls Chambers have been fortunate enough to have received instructions in this new area of bribery law and, as far as we are aware, are the only set outside of London to have done so.
Bribery Act 2010
The Bribery Act 2010 is a complete reworking of the old law, both from statute and common law, by setting out four offences that can be committed by both individuals and corporate defendants. It came into force on 1st July 2011.
The purpose of the Bribery Act is to encourage companies to ensure and demonstrate that they have adequate procedures in place to prevent any bribery. As well as this, the act has penalties in place for any individuals or companies that do partake in bribery.
Acts of bribery are defined under four main offences:
- Two general offences are defined within the act, known as active bribery (the offering, promising, and giving of a bribe), and passive bribery (the requesting, agreeing to receive, or accepting of a bribe);
- A discrete offence of the bribery of a foreign public official;
- A new offence of failure by a commercial organisation to prevent a bribe from being paid to obtain or retain business or a business advantage.
How Bribery Law Works
Guidance on how Bribery Act offences should be approached by the Crown Prosecution Service (CPS) are set out within their document, The Bribery Act 2010: Joint Prosecution Guidance (The Bribery Act Guidance).
There are some cases where a bribery offence occurs as a single isolated incident, on behalf of an organisation. Section 7 of the Bribery Act works to demonstrate that an organisation has adequate bribery prevention procedures in place, recognising that bribery cannot be prevented at all times, even if there is a prevention scheme in place. This defence acts as a motivation for organisations to ensure that relevant procedures are in place.
The Act describes six principles that should inform an organisation wishing to prevent bribery being committed on their behalf: proportionate procedures; top-level commitment; risk assessment; due diligence; communication (includes training); and, monitoring and review.
Bribery Prevention Procedures
Bribery prevention procedures are particularly important in cases where an organisation has self-referred a bribery incident to prosecution authorities. When the official criminal proceedings take place for the incident, the organisation’s co-operation will be taken into account.
An important adjunct to the Bribery Act is the emergence of Deferred Prosecution Agreements (DPA), Schedule 17 CCA 2013. This relatively new area of law, within England and Wales, has changed the focus of case settlement from civil to criminal sanction and the deferment of any prosecution. This is an exciting and interesting area of law for practitioners. It is also of enormous significance for corporates.
Being found in breach of the Bribery Act 2010 could result in criminal prosecution and an unlimited fine and up to 10 years’ imprisonment, applicable to the directors of a company, as well as the company itself.
Compliance with The Bribery Act
Compliance with the Act, even in international areas of dubious commercial integrity, will be possible if the entity involved has acted proportionally in endeavouring to do so. However, the extent or reach of the Act must be born in mind. An employee, or agent, contractor, supplier and joint-venture partner, of the organisation involved can act to incur criminal liability on the organisation itself and the widespread use of small ‘facilitation payments’ in many jurisdictions may also expose the organisation to criminal liability under the Act, although prosecutorial discretion is expected to allow for such small payments in parts of the world where they are culturally ingrained, subject to the attitude of the commercial organisation concerned to the implementation of other suggested measures required by the Act.
