The Serious Fraud Office (SFO) has published detailed guidance setting out the approach they intend to take to prosecution of offences under the Bribery Act 2010. In addition, the Ministry of Justice has issued guidance on the procedures which organisations should put into place to prevent bribery.
The Act is set to come into force on 1 July 2011 and will significantly reform the law of bribery in the UK. Crucially, the Act also creates a new offence for any commercial organisation failing to prevent bribes being paid on its behalf. The only defence to this charge is to have “adequate procedures” in place to prevent bribery.
The SFO Guidance includes guidance on what constitutes “adequate procedures”, how organisations can effectively implement such procedures and how these will be assessed in the event of a prosecution. Ultimately, these questions will fall to be decided by the courts on a case by case basis, however, prosecutors will also consider the strength of such procedures while considering whether there are sufficient prospects of success to justify prosecution. Interestingly, the guidance makes clear that the fact that one act of bribery has occurred does not automatically mean the procedures in place are not “adequate”, accepting that “the actions of an agent or an employee may be wilfully contrary to very robust corporate contractual requirements, instructions or guidance.”
Although this guidance sets out the Director of the Serious Fraud Office’s approach to prosecutions and is therefore not strictly applicable to Scotland, the guidance was drafted in discussion with the Lord Advocate. As such the guidance is likely to be indicative of the approach which will be taken in Scotland also.
We can assist your organisation in developing strategies for compliance in accordance with the new legislation and the guidance.
