The Bribery Act 2010 (the ‘Act’) came into force on 1st July 2011 and is the most comprehensive anti-bribery legislation ever introduced in the UK.
Previous UK anti-bribery laws were fragmented and subject to international criticism. The Government has addressed this criticism by introducing the Act. It brings sweeping changes to the UK’s anti-bribery laws.
The essence of the new legislation is to criminalise payments made to people to induce or reward improper conduct. The new legislation introduces a brand new strict liability offence for commercial organisations that fail to prevent bribery. The scope of the legislation spans beyond the UK - simply having a UK subsidiary is enough to fall within the scope of the Act, even if the alleged bribe is committed overseas.
A defence against the offence of failing to prevent a bribe is to demonstrate that the organisation has in place “adequate” procedures designed to prevent bribery, and that such procedures are, in fact, complied with.
About Mishcon ASSURE
Mishcon Assure is a unique product designed by Mishcon de Reya. The product identifies key areas of your organisation’s anti-bribery procedures that will need to be addressed and enhanced in order to meet the standards set out in the Act.
The uniqueness of Mishcon Assure is in its multidisciplinary approach: legal, accounting, behavioural and communications experts will identify, execute and embed the policies and values necessary for compliance.
Where necessary, Mishcon Assure will also react to provide crisis management. Our Fraud Defence specialists will provide assistance in the event of any suspicious situations and our Reputation Protection team will act swiftly to mitigate any potential damage to your reputation.
Mishcon Assure will take you through four key steps to enable your organisation to become and continue to be compliant with the new standards outlined in the Act:
- Exposure Assessment - An initial assessment of the bribery risks faced by the organisation. This will include a review of existing anti-bribery policies, procedures and training programmes. A short report will then be prepared for your Risk/Compliance Officer.
- Action Planning - In conjunction with your Risk/Compliance Officer, we will outline the specific actions required, if any, in order to minimise exposure to Bribery Act related criminal sanctions, civil liability and reputational damage. We will also agree the nature and scope of any investigations which may be required. We will then prepare an Action Report which will set out a budget and timetable for the agreed actions.
- Implementation - If action is required, we will undertake the specific tasks agreed and budgeted for in the Action Report together with your Risk/Compliance Officer. We will provide all necessary training utilising our Mishcon Enable bespoke training packages to ensure your employees understand the policies and procedures in place. We will work closely with communications experts to manage the key messages both internally and externally. Additionally, where appropriate, we will liaise with a behavioural psychologist to guide you on how best to embed your attitude to bribery into the culture of your company.
- Monitoring – We will undertake reviews at least annually and whenever appropriate (e.g. change in business profile, legal or political environment) to ensure that your processes and policies remain compliant with anti-bribery legislation. Our communications specialists will also provide continued assistance to ensure that corporate practice accords with policy.
This holistic approach enables us to ensure your compliance regime is fit for purpose.
The founder of Mishcon de Reya’s Fraud Group, Gary Miller, has over 30 years of experience in anti-fraud and corruption matters, including 13 years in private practice in Hong Kong acting for multi-nationals and banks.
We understand that many organisations need to be anti-bribery compliant across jurisdictions.
When did the Act come into force?
1st July 2011.
Does the Act set out an exemption for small facilitation payments like the FCPA does?
No, but there will be prosecutorial discretion so trivial matters may not be brought before a jury.
Are there any final guidelines issued by the Ministry of Justice that will assist?
Yes, and the final version of the guidance was published in March 2011.
Could Joint Venture partners/associates/subsidiaries cause UK companies to become liable under the Bribery Act?
Yes. UK companies have got to think about how they ensure they have adequate procedures in place so that their JV partners/associates/subsidiaries don’t give or accept bribes.
What potential liability do “Senior Officers” of an organisation have?
If they have “consented” or “connived” in an offence of giving a bribe (S.1), receiving a bribe (S.2) or bribing a foreign public official (S.6) then the Senior Officer will potentially be liable as well as the organisation he or she works for.
Does the Act impose civil liability as well?
No. However it is possible that the bribe giver and/or receiver will independently attract civil liability depending on which system of law governs the act of bribery.
Which functions within an organisation are likely to be at greatest risk?
Departments within a business that are responsible for the procurement of goods and services or that negotiate supplies of goods and services are most likely to come under scrutiny.
Is the public sector covered by the Act?
Yes. Any government employee can be prosecuted for any of the key individual bribery offences under sections 1, 2 and 6 of the Bribery Act.
Are there high risk business sectors that are more susceptible to the Act?
Yes. Property, Construction, Commodities, Financial Services, Defence and Natural Resources.
What are the key areas that companies need to focus on in assessing exposure to bribery and corruption?
Relationships with intermediaries, geographical locations, sector specific risks and dealings with government.
Is there any appetite on behalf of the government to investigate and prosecute bribery?
Yes. The SFO’s recent investigations in the Innospec and Dougall prosecution are evidence of this growing appetite.
What can we do to protect ourselves?
Undertake a proportionate bribery risk assessment to ensure compliance with the new obligations in the Bribery Act. Under the Act any organisation that fails to take this fundamental step might be unable to show that its anti-bribery procedures are “adequate”.
Could such a risk review be covered by legal professional privilege?
Yes, if structured properly and orchestrated by your lawyers then you could assert a strong claim to privilege in respect of the results of the review.
Given the international nature of family offices and the wide reaching scope of the Bribery Act, it is important that family offices based both in the UK and abroad consider the implications of the new legislation and are fully prepared.
Mishcon de Reya is experienced in working with and guiding the interests of family offices. Whatever the subject, our role is the same: to be a trusted advisor who helps resolve issues in a way that leaves absolutely nothing to chance. With this in mind, we have designed Mishcon Assure so that it can be shaped to meet the distinct needs of the family office.
Mishcon Assure combines our legal acumen, and our experience of acting as a trusted advisor to family offices, with the services of financial and communications experts to provide a holistic approach to ensuring your family office is fully prepared to comply with the Bribery Act.
Charities are besieged by demands: pressures of regulation, fast changing legislation, the day-to-day challenge of providing public services and the need to act commercially. The pressure to meet these demands can lead to a charity being exposed to bribery. The Bribery Act requires charities must be vigilant against this threat.
Given the far reaching scope of the Bribery Act, it is important that charities based both in the UK and abroad are aware of the implications of the new legislation and are fully prepared.
Our Charities Group understands these pressures and threats. We use our cross-departmental expertise to advise on all aspects of the law enabling charities and not for profit organisations to operate more effectively and commercially in pursuit of their objectives.
We have combined this expertise with services provided by financial and communications specialists to tailor Mishcon Assure to provide a holistic approach to ensuring your charity is fully compliant with the Bribery Act.