Member Article

Andrew Swan, financial crime solicitor at Short Richardson & Forth LLP, comments on the recently launched Bribery Act 2010 and the first prosecution surrounding it

After much delay and heavy international criticism, the Bribery Act 2010 finally commenced on 1st July 2011.

The Act modernises old and outdated anti-corruption laws. Of particular significance, is the new corporate offence of failing to prevent bribery by persons working on behalf of a business. As well as employees, this may extend to agents both here and overseas. This will cause some concern for those organisations seeking to develop their business in expanding economies, such as those in the Far East.

The corporate offence carries potential penalties of unlimited fines and possible permanent exclusion from public contract works for any convicted organisation. Companies will also be concerned at the damage to their reputations, if they do find themselves appearing in court.

However, companies will have a defence if they can prove they have in place ‘adequate procedures’ to prevent bribery taking place. This will include suitable policies and procedures to deter employees or agents from paying bribes to improperly influence others, such as customers or potential clients.

Solicitor Andrew Swan of Short Richardson & Forth LLP: “Anti-corruption policies are not mandatory, but organisations should pay due regard to the Act and put measures in place to protect themselves from prosecution. Simple, but robust policies will be all that most companies require.”

Companies are advised within the guidance to undertake due diligence when dealing with other businesses to ensure they are not exposed to the corporate offence by association. This will include requesting a copy of the anti-bribery policies of those organisations with which they have a business relationship or are looking to enter into such agreements. It is expected that a request for such policies will become the norm in tendering processes, particularly those in the public sector.

The Act also creates personal criminal liability for the senior officers of a company, such as the directors or senior management. They could face up to 10 years in prison if their business becomes involved in bribery with their consent or even if they have turned a blind eye to it.

Andrew Swan commented: “The business community may see the Act as yet more regulation to comply with, but they should not ignore it. The consequences of falling foul of the new laws could be catastrophic if the Serious Fraud Office arrive at your door”.

CPS announce first prosecution under the Bribery Act 2010

Mr Munir Yakub Patel, an administrative clerk at Redbridge Magistrates’ Court, Ilford, London, is to be prosecuted under Section 2 of the Act. He is alleged to have requested and received a bribe intending to improperly perform his functions.

The reviewing lawyer for the CPS Special Crime and Counter Terrorism Division, Gavin Hart said:

“It is alleged that Patel promised an individual summonsed for a motoring offence that he could influence the course of criminal proceedings in exchange for £500, on 1 August 2011.

“I have reviewed all of the evidence gathered by the police and considered the Director of Public Prosecution’s guidelines on the Bribery Act. I am satisfied there is sufficient evidence to charge Munir Patel with requesting and receiving a bribe on 1 August 2011 intending to improperly perform his functions.

“Patel has already been charged with misconduct in public office and perverting the course of justice. He still faces these charges, which relate to other alleged misconduct during his employment.“

It is understood that the Bribery Act charge will be put to Mr Patel at Southwark Crown Court on 14 October 2011.

He could be facing a potential sentence if convicted of up to 10 years imprisonment.

Andrew Swan, financial crime solicitor at Short Richardson and Forth LLP commented: “This is the first charge to be brought under the new anti-corruption laws and demonstrates that the Act is to be taken seriously”.

This was posted in Bdaily's Members' News section by Andrew Swan .