At the end of 2011 a court clerk became the first person to be convicted under new bribery legislation.
Munir Yakub Patel, 22, had used his position as an administration clerk at Redbridge Magistrates' Court, East London, to "get rid" of a speeding charge for a member of the public. The clerk who was subject to a sting operation by a national newspaper admitted one count of bribery although prosecutors believed he had earned at least £20,000 by helping 53 offenders.
This was the first prosecution and conviction under the Bribery Act 2010, which came into force on July 1st 2011.
As well as applying to all UK nationals, the Act applies to all UK businesses. Businesses can face unlimited fines as a penalty for falling foul of the new legislation, and one offence in particular under the Act that is causing most concern is the corporate offence of "failing to prevent bribery".
This offence is committed by any commercial organisation if one of its employees, agents or any person performing services on its behalf pays a bribe. It is irrelevant that the company did not sanction the bribery - they don't even need to know it took place. The offence is "strict liability", which means that the company is automatically liable. The only defence is that a company has in place "adequate procedures" to prevent bribery taking place.
But what does "adequate procedures" mean, and how can companies ensure that they can avail themselves of the defence? Unfortunately, the answer is not one size fits all. The Ministry of Justice has indicated that companies need to take a reasonable and proportionate response - and one that is based on an assessment of the risks faced by that company.
Regardless of their size or location, companies will need to engender a strong anti-bribery culture embodied by those at the top of the organisation, undertake careful due diligence on third parties that they do business with and put in place an integrated anti-corruption compliance regime to address their bribery risks.
There has been a very relaxed approach by businesses to the implementation of the act, the first real piece of anti-corruption legislation since 1906. In tough economic times perhaps businesses could have been forgiven for taking the 'my doctor approach' - You know, how many of us are proactive when it comes to seeing the GP? We normally go when we are unwell. This reactive approach is one followed all but too often by businesses but surely with this deterrent sentence being passed perhaps it will act as a wakeup call to those who may have heard of the obligations placed on them under the act but decided to leave in abeyance the anti-corruption policy, due diligence and risk assessment? Some of which would be needed to establish a defence to the corporate offence of failing to prevent bribery.
Mike Davey, Solicitor within the DPA Law the business services department, says: “ensuring the correct procedure is properly followed will help organisations show they have taken the bribery risk seriously. For many companies this will mean implementing new policies, new or improved training throughout the organisation (including training for all employees and intermediaries), and a more thorough approach to tackling the risk of bribery in the UK and abroad”.
If your business needs any help or advice in relation to the Bribery Act 2010, please do not hesitate to contact DPA Law via email mike.d@daviesparsonssolicitors.co.uk or by telephone 01554 749144
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
Posted by Peter Nicholas on Monday, January 23, 2012 at 12:52 PM