The awaited guidance has now been issued by the Justice Secretary and the Act will come into force on 1 July 2011.
The Act requires the Justice Secretary to publish guidance about procedures which commercial organisations can put in place to prevent persons associated with them from participating in bribery. The guidance is not prescriptive and is not a one-size-fits-all document; whether an organisation had adequate procedures in place to prevent bribery, in the context of a particular prosecution, is a matter that can only be resolved by the courts, taking into account the particular facts and circumstances of the case. An organisation seeking to rely on the defence that it had adequate procedures in place to prevent bribery will have to prove this.
The guidance is intended to help commercial organisations to understand what sort of procedures they can put in place to prevent bribery so that they are in a position to rely on the defence.
The government considers that procedures put in place by commercial organisations wishing to prevent bribery being committed on their behalf should be informed by six principles. These are set out in the guidance. They are not prescriptive and are intended to be flexible and outcome-focussed, and that outcome should always be robust and effective anti-bribery procedures.
As has been widely reported, the government makes clear that the Act is not intended to outlaw reasonable and proportionate corporate hospitality and promotional or other similar business expenditure.
The six principles:
Depending on the size of the commercial organisation, these principles may be reflected in specific arrangements (for example a manual, training, procedures), or in a smaller organisation may just be reflected by revision of employment contracts or staff handbooks.
Further information on the steps businesses should take to minimise their, and their management and employees’, risk of exposure, is available in our legal update at: www.fladgate.com/BriberyAct2010.
Charles Wander, Partner (firstname.lastname@example.org) or David Robinson, Partner.