After several refusals, the Bribery Act guidance has finally made it over the fence. The revised guidance should not come as a great surprise to UK plc; least of all to the FSA regulated sector which has been geared up to tackle the risks of bribery and corruption since at least 2009 and the FSA’s thematic reviews in this area.
With the Act coming into force on 1 July 2011, businesses have plenty of time to align their existing anti-bribery and corruption systems and controls with the guidance, to define within their own businesses and benchmark with their peers what is ‘reasonable’ hospitality, and take a proportionate approach to the application of the Act and guidance.
There will be prosecutions. There already are on-going prosecutions under the existing anti-bribery criminal law. But the public interest, the discretion of the SFO, and the ‘adequate procedures’ defence will act as appropriate check points before UK companies are before the criminal courts. Nonetheless, we should expect high-profile prosecutions by the end of the year.
Ken Clarke was quoted in this morning’s papers, saying: “I do not expect a large number of prosecutions, and certainly not for trivial cases based on overzealous literalism” but recent experience of the implementation of laws and regulations in the UK would suggest that businesses should rely on these comforting words at their peril.