BCL partner John Binns’s article ‘The UK Bribery Act: Happy Birthday?’ has been published by Fraud Intelligence.
Here’s an extract from the article:
In a 1982 episode of Yes Minister (‘the Moral Dimension’), the Minister, together with civil servants Sir Humphrey and Bernard, head a delegation to the oil-rich country of Qumran. There, the Minister is gifted a 17th century rosewater jar (much to the delight of his wife), whilst Bernard learns that British companies have diverted funds to Qumrani officials to secure contracts. Sir Humphrey, who is of course fully aware of the bribery, swears Bernard to secrecy. Back in London, the Guardian gets hold of both aspects of the story.
The Minister, naturally outraged but by extension implicated, goes on the offensive, alleging a smear campaign and threatening the involvement of the Press Council. The rosewater jar, itself conspiratorially undervalued for the purposes of circumventing a £50 limit on accepting gifts, ends up in a museum in the Minister’s constituency – the undervaluation explained away as deterring any potential burglars.
One of the drivers for the Bribery Act 2010, and where perhaps it has been most successful, is in changing the perception of bribery, particularly in the corporate world. The way bribery was often treated at the time of Yes Minister, in Sir Humphrey’s words, is that everybody knew it was done, but that that was perfectly fine, provided nobody knew about it. Whilst the Act has not led to a torrent of prosecutions, it has brought about a sea change in how corporates consider and mitigate against bribery.
The Corporate Offence
The so-called ‘failure to prevent’ provisions of the Act, contained in section 7, have undoubtedly brought about the greatest change amongst corporates. Under section 7, a corporation commits an offence if a person associated with it, including an agent or subsidiary performing services on its behalf, bribes another person in the UK or anywhere else. Provided the corporation cannot prove on the balance of probabilities that it had in place ‘adequate procedures’ to prevent bribery then it would be guilty. Therefore, the mass implementation of these adequate procedures, influenced by guidance published by the Ministry of Justice in accordance with section 9, proportionate procedures, top-level commitment, risk-assessment, due diligence, communication (including training), and monitoring and review, is a clear consequence of the Act and can be marked as a success.
Notably, the failure to prevent offence under section 7, and the defence, has also been mirrored in sections 45 and 46 of the Criminal Finances Act 2017, which create offences of failure to prevent the facilitation of tax evasion. If imitation really is the sincerest form of flattery, then the fact that section 7 has been adopted as a template would appear to show its success.