UK Bribery Act 2010: How to Avoid Prosecution

Posted By: Admin, 07 Jul, 2011 - 12:38 am

If the exploits of a rogue  employee or associated person cause an organisation to fall foul of the Bribery Act 2010, which came into force last week, the impact of the new legislation can be mitigated, but effective action must be taken, and swiftly.

According to the first two sections of the UK Bribery Act, which are concerned with active and passive bribery, it is an offence for an employee or associated person (defined as any individual or incorporated or unincorporated body who performs services on behalf of a company) to offer, promise, give, request, agree or receive a bribe.

Under section seven of the Act, it is an offence for commercial companies and UK incorporated charities to prevent bribery committed on their behalf, and organisations are open to prosecution if an ‘associated’ individual or company pays a bribe.

Additionally, a discrete offence prohibits the bribing of public officials in order to obtain or retain business, under section six of the Act.

However, there is a full defence if an organisation is able to demonstrate it has adequate procedures in place to prevent bribery; this is in essence the new legislation.

It is therefore essential for businesses to adopt adequate procedures sooner rather than later, but ultimately this will depend on the complexity, nature and size of the organisation.

The Ministry of Justice recently published a six-point guide to help organisations consider potential areas of risk and whether they need to make changes in the future:

The Six Principles for Bribery Prevention

  1. Proportionate procedures
  2. Top level commitment
  3. Risk assessment
  4. Due diligence
  5. Communication
  6. Monitoring and review

Similarly, following the steps below can help organisations develop a defence under section seven and an action plan for dealing with bribery. 

Step One

Put together a list of key policies and procedures that would prevent bribery if complied with, and identify evidence of their implementation.

Step Two

Consider when the policies were last reviewed and in the light of the new legislation, determine how appropriate they are. The review should highlight any necessary amendments, deadlines and responsible officers.

Step Three

After reviewing the organisation’s framework for dealing with bribery, it is time to deliberate the six principles highlighted above. The organisation must determine its level of compliance with each principle and what, if any, action needs to be taken.

Step Four

Recommendations from the policy and principle review (steps 1 to 3 above) should be compiled into a matrix report that is evaluated by the audit and risk committee. Subsequently, the committee must develop an action plan explaining how the framework will be communicated internally and to associated persons, and integrated into the organisation’s risk management framework.

Step Five

The final report should be presented to the board for approval and continual monitoring.

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