The wording of the article 7 offence means that the obligation to establish “reasonable procedures” rests with the company as the defendant in the proceedings. The defence must be based on the standard of civil evidence (after weighing the probabilities). All the prosecution must determine is that a bribe was offered, promised or given, even if the person who committed the corruption offence was not prosecuted himself. If the company has established the defence to the appropriate standard, it is up to the prosecution to rebut it according to the criminal standard of proof (beyond a reasonable doubt). It is important to note that under the law, the corruption itself does not necessarily have to have taken place in the UK for the offence to have been committed. The corruption offences referred to in Sections 1, 2 or 6 of the UKBA may be brought under the jurisdiction of the UK authorities where an act or omission forming part of the offence takes place in the United Kingdom or where a person or entity with a “close connection” to the UK participates in the offence. Every effort has been made to verify the accuracy of the information contained in this document. All information was considered correct in June 2019. However, Transparency International UK (TI-UK) cannot accept any responsibility for the consequences of its use for other purposes or in other contexts. The policy recommendations and best practice guidelines reflect the opinion of TI-UK.

They should not be construed as reflecting the views of the individuals quoted or interviewed, or those of the companies or individuals who contributed, or members of the Expert Advisory Board or DLA Piper. TI-UK or DLA Piper accepts responsibility for the information contained herein, its interpretation or the reliance they place on it. The document should not be construed as a recommendation, endorsement, opinion or approval of any kind. This guide has been prepared for informational purposes only and should not be used for legal purposes. Always seek professional advice before taking action based on the information provided. An organization should regularly monitor and review its anti-corruption procedures and make improvements if necessary. An individual and/or business may also face the forfeiture of criminal property (i.e., proceeds of crime) from the crime, which may include income attributable to a contract won through corruption, not just the value of the bribe paid. The only defense for corporate infringement is for the company to prove that it has put in place “reasonable procedures” to prevent corruption. Therefore, any decision whether or not to prosecute should include a detailed review of the procedures that the suspect company has put in place and how they have been implemented. It is important to stress that the focus will be not only on what the written procedures look like, but also on how they have worked in practice. The Prosecutor will deal with issues such as: article 10 requires the approval of a prosecution by the director of the competent law enforcement authority before a case can be prosecuted; This is a break with the old regime, which required the approval of the Attorney General of England and Wales.

[24] Section 11 explains the penalties imposed on persons and companies guilty of committing a crime. If a person is convicted of a corruption offence and convicted of a summary offence, they can be detained for up to 12 months and fined up to £5,000. However, a person convicted of charges faces up to 10 years in prison and an unlimited fine. [25] An offence committed by a commercial organization that does not prevent corruption is punishable by an unlimited fine. In addition, a convicted person or organization may be subject to a confiscation order under the Proceeds of Crime Act 2002, while a convicted business executive may be disqualified under the Disqualification of Corporate Directors Act 1986. [26] Where a shipowner (carrying on a business or part of a business in the United Kingdom) pays money to an agent to ensure the smooth port visit of a ship to the ports of a particular country, the shipowner is liable if he bribed officials, unless he can prove that he had put in place “reasonable procedures” to prevent corruption. Companies convicted of corruption offences can also be excluded from public procurement under the EU Public Procurement Directive. In FCA v. Macris,[xvii] the Supreme Court overturned the Court of Appeal`s decision and ruled that the FCA had not negatively identified a former JP Morgan executive in a notice to the bank. With respect to the legal test of “identification,” the Supreme Court ruled that a notice would identify a third party, even if he or she was not directly named but was identified by a synonym such as his or her office or job title.

At present, there is no such guarantee with regard to DPAs that prevents the identification of individuals: this has caused some consternation with regard to the DPAs agreed with Tesco Plc and Sarclad, whose leaders were then unsuccessfully prosecuted. However, Serco`s latest statement of facts, issued after the failed trial of two former Serco executives, did not name any people, but called them “Director 1 of SGL” and “Director of SGL 2”. [xviii] Conversely, under amec Foster Wheeler Energy Limited`s recent DPA (see below), no separate statement of facts has been issued at this time, as it is subject to a reporting restriction order. Lisa Osofsky, the director of the FSO, has already pointed to “outdated” laws, such as the doctrine of identification, which must prove the criminal responsibility of a company, as an obstacle to the prosecution of crimes by companies, in addition to not preventing corruption (and from 2017, the facilitation of tax evasion will not be prevented).