Bribery is in the news, the papers are full of Sepp Blatter and the Fifa Gang. The investigations in USA and Switzerland are continuing and bringing into focus the fact that Bribery is a crime and those committing it can be prosecuted and fined and jailed.
I think it is fair to say that less Bribery occurs in business within UK than in many other Countries but that is nothing to be too smug about, there is no doubt room for improvement,
As to bribery abroad, a problem for many Businesses and their Owners who are contemplating doing ventures with international partners, is a perception that in many places around the world bribery is simply a part of the landscape. Without it no business can be done.
Certainly there will be no changes in the world if the attitude “We can’t change it, so we have to do it” simply continues unchecked. The relatively new Bribery Act of 2010 is the British response to the problem – the first time the issue has been addressed in UK in over one hundred years.
In a nutshell, if you are running a business and your employees agents or partners abroad are getting contracts and advantages by “greasing palms” then you, personally, can go to jail for ten years even if you did not know. You are the boss, you should have known.
Remember, the actual bribe could be paid in your name in a Country where its payment is not actually a Crime – and is even perhaps a commonplace and expected way of behaving there. Still a Crime in UK though.
It is a full defence for an organisation to prove that “despite a particular case of bribery it nevertheless had adequate procedures in place to prevent persons associated with it from bribing. “ Link here That’s worth reading twice. Because by the dictionary definition of “Adequate”, if adequate procedures were in place then Bribery could not have happened. And if it has happened then the procedures cannot have been adequate. So by the dictionary definition of the words there is no defence available to you. Off you go to start your porridge, if your agent turns out to have been paying a corrupt civil servant for “fast tracking” trading licences or whatever.
However it is apparently not the dictionary meaning of words that we are dealing with here. As so often, Parliament is taking the view that the words of the Act mean what they intend them to mean and not what they, umm, actually, as it were, mean.
Kenneth Clarke seeks to reassure, in the Ministry Guidance documents, link here
“The core principle the Act sets out is proportionality. It also offers case study examples that help illuminate the application of the Act. Rest assured – no one wants to stop firms getting to know their clients by taking them to events like Wimbledon or the Grand Prix. Separately, we are publishing non-statutory ‘quick start’ guidance. I encourage small businesses to turn to this for a concise introduction to how they can meet the requirements of the law. “
I am not sure that my own advice to you would be as relaxed. Indeed I think that the last thing you and your co-Directors should be doing is “Resting Assured”!
And if it is true that “The core principle the Act sets out is proportionality” [and to be fair, the Guidance note does seem to back this up] then I think it strange that the word “proportionality” is not written even once in the actual text of the Act of Parliament. Hmmm. And again, Hmmm.
If bribery in your name ever does take place and you are prosecuted, it is YOU who will be in the very difficult position of showing that your procedures were “adequate” – for preventing the very thing that has happened!
A short “Quick Start” Guide to the Act has also been published by the Govemment – link here
The published CPS [Crown Prosecution Service] guidance is “The statutory “adequate procedures” defence to a failure of commercial organisations to prevent bribery (section 7) encourages such bodies to put procedures in place to prevent bribery by persons associated with them. The Act is not intended to penalise ethically run companies that encounter an isolated incident of bribery. Section 7 and, to a degree, section 6 (bribery of foreign public officials) are designed to balance corporate responsibility for ensuring ethical conduct in the modern international business environment with the public interest in prosecuting where appropriate.” Here is the link – I am not sure that reading it thoroughly will help you sleep at night.
What it makes clear is that you are rather unlikely to start from the position that you are “Innocent until proven Guilty”. The burden is far more upon you, to prove that you are innocent, in a Courtroom where the jury will be starting from the simple thought– “S/He is the Boss, S/He knew all about it”
What have we learnt? It is obvious that international traders need to have procedures. [If that is you, then you MUST have “procedures”]
If they [You!] have none, they can have no defence that their procedures are “Adequate”. In the Bribery Act, the word “Adequate” must presumably mean, “reasonably to have been considered likely to be adequate – until this happened!”
So you need to be able to show that real serious thought has been given to the issue of Bribery, and that you regularly return to it, in your meetings, in your documentation and in the training and general ethos of your business.
Some free documents are here link here to get firms up and running on the topic. If you would like to contact me to discuss any of the points raised please do.
Here I am in Leeds, do get in touch whenever I can assist and in particular whenever you have a legal issue which has any foreign element – At email@example.com or phone me or Louise +44 (0) 1138160116