Bribery Act: Business Beware
18 October 2013
It was announced on 14 August 2013 that three persons were being charged under the legislation by the Serious Fraud Office in connection with the sale and promotion of 'bio fuel' totalling £23 million. This prosecution also denotes the new era for business and public bodies alike that need to be alive to the provisions of the Act to avoid any allegations of improper conduct.
The Act covers two logical areas: those seeking to offer/pay a bribe and those receiving or requesting the same. It follows that if either of these is found to be true, substantial financial penalties will follow. The Act came into force in the summer of 2011 and is draconian in scope, given it is wider than the basic business by including "asssociated" persons. This firmly puts the burden on business and contracting bodies to have adequate procedures in place to prevent such conduct.
Therefore any local authority or public body that engages in tendering business to the private sector will need to consider the provisions. Since the introduction of the Health and Social Care Act 2012 a large quantity of groups (clinical commissioning groups or "CCG") have been created to commission services for the NHS across the country. This is fraught with danger when one considers the Bribery Act 2010, as each CCG will need to be aware of the associated risk of referral fees (recently banned outright for the solicitors profession) to members of staff as well as the receipt of benefits of any sort from sub-contractors, etc. In comparison, county councils like Suffolk have recently been seeking to outsource up to 80% of the work undertaken. The same principles apply. Failure to do so would cause a catastrophic reputational reduction plus the potential court imposed penalties.
The current SFO prosecution could have been started under the old legislation and, as a prosecutorial body, they tend to stick to larger projects fitting its terms of reference. I suspect it was a conscious decision to pursue this matter on public policy grounds under the Bribery Act 2010 as a deliberate and targeted shot across the bows of business and public bodies alike. Furthermore, despite SFO restricting itself to the larger cases, that does not rule out smaller prosecutions in the future by BIS or the CPS making the Act a clear and present risk that must be appropriately managed.
The barristers at EA Law - East Anglian Chambers can assist in developing bribery policies or advising in particular instances that have caused business leaders cause for concern plus any employment issues that may arise.
Barrister in Commercial and Criminal Teams