Civil Engineering Reference
In-Depth Information
Each case will be decided on its merits; however, given the risk involved, a
zero-tolerance policy agreed upon by all parties is the safest way to proceed.
In general, the mere fact that an organization benefits from a bribe paid does not
amount to proof of intention under s.1 and s.2 of the Bribery Act. he Guidance states
that 'without proof of the required intention, liability will not accrue through simple
corporate ownership or investment or through the payment of dividends or provision
of loans by a subsidiary to its parent'. Therefore, where an employee of a subsidiary is
involved in bribing for the intended benefit of the subsidiary, this will not automat-
ically involve the bribery of the parent or sister companies of the subsidiary. This is
so even though the parent company or sister companies may benefit indirectly from
the bribe.
22.3 The Bribery Act 2010: The defence
22.3.1 The defence
It is a defence in respect of conduct which would otherwise be an offence under
s.7(1) for a commercial organization to prove that it had in place adequate procedures
designed to prevent persons associated with the organization from undertaking such
conduct.
22.3.2 Corporate defence: Adequate procedures
S.9 of the Bribery Act places on the Secretary of State the burden of publishing guid-
anceonproceduresthatrelevantcommercialorganizationscanputinplacetoprevent
persons associated with them from bribing as mentioned in section 7(1).
Publication of the Guidance was delayed by the UK Government in 2011, amid
concerns raised by businesses in relation to the s.7 corporate offence which penalizes
the failure of commercial organizations to prevent bribery by persons associated with
them. In March, 2011, Kenneth Clarke, the Secretary of State for Justice, said:
he guidance
should arm organi-
sations of all sizes against the fears that millions of pounds must be spent on proce-
dures, that in my opinion, no honest business will require
…
by improving clarity about its intentions
…
[T]he ultimate aim
of this legislation is to make life difficult for the minority of organisations respon-
sible for corruption, not to burden the vast majority of decent and law-abiding
businesses.
…
More recently, amid rumours of possible review of the Bribery Act or the Guidance,
Damian Green, Minister of State for Policing and Criminal Justice, confirmed at a
Commons debate on 2 September 2013 that his department has no current plans to
review the Bribery Act. He further stated that 'the Ministry of Justice in association
with the Department of Business Innovation and Skills is working to ensure small and
medium-sized enterprises fully understand how the Act and the guidance relate to
