Clare Montgomery QC and
David Ormerod; Deputy Editor
Tony Shaw QC
Presented in looseleaf format with regular updates this is a definitive work on fraud which draws on the expertise of leading, specialist practitioners. It contains detailed narrative and relevant materials.
The Bribery Act 2010 will now come into force on 1 July 2011.
Ahead of its implementation 2 important guidance documents were published on 30 March 2011:
The Guidance makes it clear that a proportionate approach will be taken to the enforcement of the Act. It is not intended that the full force of the criminal law will be brought to bear on well run organisations affected by an isolated incident of improper conduct. Key points arising from the Guidance are as follows:
The Guidance encourages organisations to consider seeking some form of external verification or assurance as to the effectiveness of its anti -bribery procedures, but such certification may not necessarily mean that the company has established its adequate procedures defence to a charge under section 7 of the Act.
The Guidance sets out 6 principles, which are non-prescriptive, that may assist businesses in formulating procedures appropriate to their specific needs.
The Guidance makes clear that businesses could be liable for the corporate offence of failing to prevent bribery (section 7) as a result of actions by third parties who could be deemed “an associated person” for the purposes of the Act. However liability will only arise if that third party performs services for a business. It is therefore at present considered very unlikely that a business would be held liable for the actions of someone who simply supplies goods to a business.
There is a full defence to the corporate offence if the organisation can show it had adequate procedures in place to prevent bribery, and the Guidance aims to assist companies in putting such procedures in place. However the Guidance also makes it clear that compliance, or non compliance, with the principles referred to above will not necessarily be determinative for the purposes of establishing criminal liability.
There is debate as to how far the Act will apply as against foreign companies. The Guidance suggests that simply being listed in the UK but not carrying on business within the jurisdiction will not be sufficient to engage the Act. Conversely the Serious Fraud Office has indicated that it will adopt a wide approach to the interpretation of the Act. Ultimately it will be left to the courts to decide.
The Joint Guidance from the SFO and DPP indicates that if prosecutors believe there is enough evidence to prosecute they will also consider whether it is in the public interest to do so. Factors to be considered in that determination include: