Giving/taking a bribe
The Bribery Act has the potential to make criminals out of most businesses, their owners and senior management. It requires businesses to have in place arrangements to prevent bribery occurring in that business. The problem for a business is that if someone associated with it commits an act of bribery then the business is also guilty unless it proves that it had in place adequate procedures designed to prevent persons associated with it from undertaking such conduct. Note the wide definition of ‘associated person‘.
Government claims that the Bribery Act will benefit, not hinder, British business. It will ensure that the UK is at the forefront of the battle against bribery; clamping down on corruption without being a burden on business. Government claimed also that combating bribery is about commonsense, not burdensome procedures. It claimed to have listened carefully to business to ensure that the Bribery Act is implemented in a workable commonsense way which is simple for both the smallest firm and largest corporation to get to grips with.
It is doubtful that anybody believed this rhetoric but the reality is that business does need to take note so as to avoid falling prey to the possible ambitions of government who may decide it has a point to prove by prosecuting some businesses to show how much better they are than any other government.
The Serious Fraud Office has already brought a serious case that has resulted in convictions. The three defendants shared 28 years of prison for their part in an enterprise referred to as Sustainable AgroEnergy plc. There were earlier but smaller cases including the court clerk who agreed to wipe a speeding conviction from the court record and the student who tried to bribe his professor. However, the SAE case is the one that is most likely to set the tone for the future where cases include an international element with large sums of money.
The arrangements needed to comply with the Act are quite simple to implement. We can assist you to comply with the Act and have a suitable policy in place to protect you and your business from prosecution under section 7 of the Bribery Act. If your business is convicted of a bribery offence the consequences will be very great. It is possible that the business may have to prove that all its income for the period of six years prior to any charge was legitimate income with the prospect of confiscation of all monies where you fail to prove this. Let me put that another way. Any income or expenditure that you cannot prove was through legitimate transactions will be assumed to be criminal proceeds and liable to be confiscated. Confiscation is draconian, seriously so.
The cost of securing your business against prosecution is small. The implications of a prosecution are great. If an employee or other person connected to your business should happen to become involved in offering/receiving a bribe then you will need to avoid a prosecution for the business and you. Conviction will lead to confiscation proceedings. Even if you manage to prove the legitimacy of the income of the business the cost of achieving this will be massive. Will the business be able to survive this burden? There is no legal aid for the business to deal with this.
With a small outlay in terms of cost and time you can do what is necessary to avoid this problem happening to you. Remember that the business does not need to be at fault for a successful prosecution under Section 7 of the Bribery Act. It only needs to have failed to plan for the possibility that someone else would commit an offence under the Act. If you have a policy in place you may find that insurance cover can be given and should be inexpensive.
If your company becomes aware of an incident of bribery by a ‘related person’ then advice should be taken immediately from expert solicitors as there are ways of minimising the impact on the business and others involved in the business. We expect this government to introduce a new system of deferred prosecution agreements at some time. These will add another layer of protection for good businesses who found a problem but are doing what it can to avoid such matters in future.
Contact Dennis Clarke to discuss your needs and agree a fee to resolve this. At the same time why not have a policy to deal with other eventualities that are usually ignored but which will be expensive if no plan is in place. See our business section for more.
Clarke Kiernan, Bribery Solicitors,
2 – 4 Bradford Street, Tonbridge, Kent. TN9 1DU and
The Court, Mount Pleasant, Barry, Vale of Glamorgan, CF63 2HE
Phone: 01732360999, Fax : 01732353835, fraud@clarkekiernan.com, Map