The Government has released Guidance on the Act, which is intended to help organisations understand how the Act will operate and how to deal with the risks of bribery. The Guidance gives insights into how the Act might be interpreted, but does not give assurances. It suggests procedures that might be adequate, but does not set down rules.
- Answers to some FAQs on the Act and its application.
- Overview of ss. 1, 2, 6 and 7 offences and what the prosecutor must establish to secure a conviction.
- The six principles of bribery prevention: (1) proportionate procedures, (2) top-level commitment, (3) risk assessment, (4) due diligence, (5) communication and (6) monitoring and review. The Guidance includes commentary on each and suggested procedures.
- Case studies demonstrating how the six principles of bribery prevention might be applied in practice.
KEY POINTS TO TAKE FROM THE GUIDANCE
Gifts and hospitality
- Reasonable and proportionate expenditure is not prohibited by the Act.
- Intention is the key to prosecution i.e. intention to induce improper performance (general (s.1)) or intention to influence and secure business or a business advantage (public official (s.6)).
Is my organisation “carrying on a business in the UK”?
- If an organisation engages in commercial activities, it does not matter if it pursues purely charitable or educational aims or purely public functions; the purpose for which profits are made is irrelevant.
- Whether an organisation carries on a business in the UK remains a question for the courts, which the Government anticipates will take a common sense approach. Organisations that do not have a demonstrable business presence in the UK are unlikely to be caught. For example, simply being listed on the London Stock Exchange would not be sufficient, likewise, having a UK subsidiary will not automatically deem the parent company to be carrying on a business in the UK as the subsidiary may act independently of the parent or group.
Any person who performs services for or on behalf of an organisation is potentially an “associated person”, but:
- The Courts will take into account all of the relevant circumstances, not just the nature of the relationship.
- The key is the performance of services in business, therefore, an organisation is unlikely to be liable for the actions of a person who simply supplies goods to the organisation.
- Without intention, receiving an indirect benefit from a bribe paid by an associated person is unlikely to result in prosecution.
- The degree of control over the bribe payer will be taken into consideration.
Over the coming days and weeks we, at the Bribery Library, will be commenting on these and other aspects of the Guidance.