The Corporate Offence
An offence is committed by a commercial organisation when:
- A person "associated" with the commercial organisation (i.e. performs services for it) bribes another person (within the meaning of sections 1 and 6);
- The bribe is intended to obtain or retain business for the commercial organisation or retain an advantage in the conduct of the organisation's business.
Importantly, it is a defence for the commercial organisation to show that it had adequate procedures in place to prevent bribery being committed by those associated with it from undertaking such conduct.
Further points to note
Unlike equivalent US legislation there is no "carve-out" for facilitation payments i.e. usually small payments made to officials to ensure that routine actions/processes e.g. issuing permits occur or are expedited. It is unlikely that it will be in the public interest for any of the prosecuting agencies to prosecute limited, small payments, however the SFO has indicated that it expects commercial organisations to make efforts to eradicate such payments. As the SFO generally only deals with cases over £1 million, it is likely that the prosecution of such payments will be left to the Crown Prosecution Service. Factors likely to be considered include the size and frequency of the bribe, in which case it may be deemed not in the public interest to prosecute.
The prosecution of bribery no longer requires the consent of the Attorney General. The Director of a relevant prosecuting authority, such as the Director of Public Prosecutions and the Director of the SFO, for example, will be able to permit such proceedings to be brought.
Any offence committed or partly committed before the relevant provisions come into force will be dealt with under the old law.
For a more detailed analysis of the question of whether a foreign parent company can be liable for the activities of a UK or foreign subsidiary click here.