You and your firm should be vigilant about bribery and corruption, which are both criminal offences under the Bribery Act 2010.
Since this Act was passed, there has been increased scrutiny of individuals and corporate business conduct and more concern about the wider impact of corrupt practices, whether in the UK or abroad.
What is Bribery?
Bribery is defined by the Ministry of Justice as ‘giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly, or to reward that person for having already done so’.
In the simplest terms, this covers giving some kind of extra benefit (gifts, money or favours) to influence a decision-maker. This typically includes manipulating a public official, or paying a commercial organisation to maintain a business advantage.
What is the Bribery Act of 2010?
The Bribery Act 2010 was introduced to enhance UK law on bribery. It was brought about partly in response to the requirements of the 1997 OECD Anti-bribery Convention. The Act is now widely regarded as the toughest anti-corruption legislation in the world.
The Bribery Act 2010 introduced a new offence for companies and partnerships of ‘failing to prevent bribery’ – placing the burden of proof on companies to show they have adequate procedures in place to prevent bribery.
There are also strict penalties for active and passive bribery by individuals as well as companies.
The Bribery Act has an international reach – applying to UK companies operating abroad and overseas companies with a presence in the UK.
Any company that commits bribery offences faces unlimited fines, and individuals can spend up to ten years in prison. Directors convicted of bribery crimes can be disqualified from holding a position as director for up to 15 years. Assets gained as a result of the bribery can be confiscated.
What Type of Actions are Considered Bribery or Corruption?
There are four main offences in the Bribery Act:
- Offering, promising or giving an advantage (bribe)
- Requesting, agreeing to receive or accepting an advantage (bribe)
- Bribery of a foreign public official
- Failure by a commercial organisation to prevent a bribe being paid to obtain or retain business or a business advantage
‘Failure to prevent bribery’ (Section 7 of the Bribery Act) is particularly wide ranging. It puts the onus on a company to prevent any bribery carried out by an employee, foreign subsidiary, service provider or agent anywhere in the world.
Any foreign company that carries out any part of its business in the UK can also be prosecuted for ‘failure to prevent bribery’ under UK law.
This basically means that if a company doesn’t have strict anti-bribery measures in place, it is automatically committing an offence.
A Bribery Act investigation can only take place if a company or individual is suspected of committing a crime since 1 July 2011, but the previous legislation can still be used to investigate older cases.
What Happens in a Bribery and Corruption Investigation?
If the SFO receives information that a company’s action undermines UK and financial and corporate interests, it will start an investigation.
The first time you will hear about an investigation is when you hear from the SFO or the police. At this point, it is vital that you and/or your organisation begin your own investigation into allegations of bribery.
The SFO can compel any individual or organisation to produce any information or documentation it requires for its investigation. SFO can demand an interview with an individual, and refuse permission for a lawyer to accompany them – unless their lawyer can justify why they should be allowed to attend.
If there is strong enough suspicion of bribery, it is possible for the SFO to freeze assets while it investigates a case.
Once the SFO has compiled enough evidence, it will take the company or individual to court and attempt to prosecute them for offences under the Bribery Act 2010.
Maximising your chances of avoiding prosecution
Patrick Cannon can help to challenge and minimise the impact of bail conditions or restraint orders, and challenge the evidence produced by the authorities (particularly that obtained under covert surveillance).
Patrick can also help you to pursue a Deferred Prosecution Agreement (DPA). The DPA is a set of conditions which can enable a company to avoid prosecution. The conditions are set by the SFO, and could include: payment of a fine or compensation, the removal of staff, changes to working practices or helping with the prosecution of certain individuals. If these conditions are met within a certain time frame, the company will not be prosecuted.
Alongside this, Patrick Cannon can advise and defend individuals on:
- Money Laundering
- Income Tax Fraud
- Code of Practice 9
- Payroll Fraud
- Furlough Fraud
- Unexplained Wealth Orders
Patrick has been advising on tax financial crime for over 35 years, first as a solicitor and latterly as a barrister. This experience has given him expertise in helping businesses negotiate the complexities of financial crime investigations. As a barrister, he represents companies and individuals in appeals, and can offer advice on all aspects of financial crime.
For advice and representation in a financial crime investigation with one of the UK’s leading specialist tax and financial crime advisers, please contact Patrick Cannon here