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UK Bribery Act 2010 (There will be a statutory defence for businesses that…
UK Bribery Act 2010
There will be a statutory defence for businesses that have 'Adequate Procedures' to prevent bribery. The UK government has published guidance around this. The guidance is principles based rather than prescriptive. The six principles enshrined in the guidance are:
Proportionate Procedures: Bribery prevention procedures should be proportionate to the risks faced and the size and complexity of the business and clear, practical, accessible, property implemented and enforced
Top level commitment: Top level management should take board level responsibility for bribery prevention and foster a zero-tolerance culture towards bribery
Risk Assessment: Risk assessment processes should consider both internal and external risks, be performed periodically and documented
Due diligence: Due diligence should be conducted on parties performing services for, or on behalf of, a business and proportionate and risk based
Communication: Communication and training is necessary to ensure that bribery prevention policies and procedures are embedded and understood throughout the business. They may also include external communication and a secure, confidential and accessible 'speak up' procedure
Monitoring and review: regular monitoring and review should evaluate the effectiveness of current bribery prevention procedure and identify and implement necessary improvements
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Created a new offence which can be committed by organisations which fail to prevent persons associated with them from committing bribery on their behalf
In the US, corporates typically do not defend prosecution brought under the FCPA as a result of the unlikely prospect of a successful defence and the repetitional and other collateral damage suffered along the way
Under this offence organisations are criminally responsible for bribes on their behalf by 'Associated Persons' whether they know about them or not
Directors and officers of a CSP may be guilty of offences if they are implicated either actively or passively
In roder to be caught in this Act, all that is required is that a business carries on business or part of its in the UK, or any business with UK connections will potentially be caught
If an employee of a business gets it wrong they risk prison. The business risks unlimited fines, blacklisting from EU contracts and the forfeiture of the value of illegal deal under related Proceeds of Crime and Money Laundering laws
Businesses who put in place 'Adequate Procedures' to prevent bribery will have an absolute defence to liability under this law and may also include senior officers of an OSP (unless they are themselves implicated in the corrupt behaviour)