Bribery-Corruption

It's been 6 years since the Bribery Act 2010 (the "Act") came into force.

In this bulletin, we will give a whistle stop tour of the Act's practical impact so far in relation to the corporate offence, and highlight our practical tips for businesses to ensure compliance with the Act and for co-operation with the SFO in the event of uncovering bribery or corruption.

Brief overview of the Corporate Offence

The Act came into force in 2011. It introduced (amongst other things) a corporate offence of "failure on the part of a corporate entity to prevent bribery being committed by an associated person with the intention of benefitting that organisation" (the s.7 Offence). Since 2014, the Serious Fraud Office ("SFO") has been able to enter into Deferred Prosecution Agreements ("DPA") with corporate entities rather than to prosecute. A DPA allows the SFO to suspend a prosecution for a defined period and if certain obligations are met by the offending party (such as payment of a certain fines and taking steps to bring the entity into compliance) the prosecution proceedings will be discontinued.

The story so far

Sweett Group – no DPA

The first conviction under section 7 occurred in 2016. Sweett Group plc admitted failing to prevent its wholly owned subsidiary from bribing a director of a UAE company to obtain construction services. SFO ordered Sweett Group plc to pay £2.3m. The offence was classed as serious by the SFO, and a DPA was not offered, as in the SFO's view:

  • the bribery had taken place over a sustained period;
  • Sweett had been unable to demonstrate that it had "adequate procedures" in place;
  • Sweett had been uncooperative through parts of the process, and slow to self-report to the SFO.

SFO v XYZ and Rolls Royce – DPA granted

XYZ Limited (XYZ) was a small UK company that exported to Asian markets. In 2000 it was acquired by a US company ABC. From 2004 to 2012 a small but important group of its senior employees and agents paid bribes to secure various foreign contracts. When ABC realised that XYZ's compliance was inadequate, ABC immediately instructed a law firm to carry out an independent review. On the back of this, XYZ self-reported to the SFO. A DPA was agreed, which resulted in XYZ agreeing to pay a £6.2m disgorgement of gross profits and a £352,000 financial penalty. XYZ 's exemplary level of co-operation from the outset was noted.

In 2017, a DPA was agreed with Rolls Royce plc. The allegations related to corruption on a global scale in countries such as China and Russia, taking place over a long period of time. Again, Rolls Royce obtained the benefit of a DPA, despite the seriousness and long-term nature of the conduct. In the statement of facts from the DPA, the "extraordinary co-operation" by Rolls Royce was noted.

So what's the moral of the story?

Recent investigations highlighted above illustrate that if there has been offending behaviour under the Act occurring within an organisation, the likelihood of obtaining a DPA will be based on the key principles of co-operation with the SFO and self-reporting, alongside the seriousness of the offence and the potential effect on the entity in question.

Businesses that uncover any form of bribery or corruption in their organisation should consider these lessons and ensure that their reaction and the way they handle the issue reflects the behaviours expected of the SFO.

Top tips for compliance under the Bribery Act

Of course, organisations should take steps to minimise the risk of being put in the situation where it has to self-report an incident to the SFO.

Following these tips can assist compliance:

  • Adequate procedures  Procedures should be aligned to the scale and complexity of the organisation's activities, while also being clear, accessible and effectively implemented and enforced. Proving that adequate procedures are in place is a defence for a section 7 prosecution.
  • Top level commitment – Senior management should be demonstrably committed to preventing bribery within the company and its supply chains.
  • Risk assessment – For any anti-bribery process to be consistently effective, the organisation must assess the nature and extent of its exposure to potential risks of bribery. The assessment should be regular, informed and well documented.
  • Due-diligence – Due diligence procedures must be utilised, taking a proportionate and risk-based approach, taking into account the people, suppliers and other third parties who perform or will perform services for or on behalf of the organisation.
  • Communication and training – Bribery prevention policies and procedures must be understood throughout the organisation and its supply chains, via both internal and external communication. Communication should include training that is proportionate to the risks the organisation faces.
  • Monitoring and review – Organisations should regularly review procedures, policies and protocols to make changes and improvements where necessary. As a business' operations change and evolve so will the risk facing the organisation and it is therefore imperative for regular re-assessment to be undertaken.

How can we help?

Through our strategic partnership with Ward Hadaway law firm, Ward Hadaway have a team of experts who have in-depth knowledge of the Bribery Act 2010 and can provide you with clear, practical advice on how to make sure your company meets its legal obligations under the Bribery Act 2010.

For further information, please contact us and we will ensure we put you in contact with a specialist from Ward Hadaway immediately. Call 0333 006 2929 or email info@esphr.co.uk.

 


This article has been drafted on esphr’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm are one of esphr’s strategic legal advisory partners and provide certain services to our customers through a range of different Legal and HR support services offered by ourselves to the Corporate market. The content of this article does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.

 

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