Civil Engineering Reference
In-Depth Information
of vulnerability to prosecution, and insofar as it highlights key risk areas, providing
businesses with an opportunity to minimize identified risks.
heSeriousFraudOice(SFO)havehighlightedthatcertainfactorsincludinglarge
or repeated payments, planned-for payments which indicate the offence was premed-
itated, and payments made in breach of a clear company policy are more likely to
result in prosecution. Where the offence consists of a single small payment, or comes
to light by way of an organization's own diligence and remedial action is taken, then
prosecution is unlikely.
In an open letter from the director of the SFO, dated 6 December 2012, regarding
facilitation payments, the SFO stated that facilitation payments are illegal under the
Bribery Act 'regardless of their size or frequency' and that 'the Serious Fraud Office
standsreadytotakeefectiveactionagainsttheuseoffacilitationpayments,regard-
lessofwheretheyarerequested'.Moreover,theSFOpublisheditsrevisedpolicieson
facilitation payments, business expenditure and corporate self-reporting in October
2012. With regards to facilitation payments, it is stated that the SFO is governed by
theCodeforCrownProsecutors'FullCodeTestandtheJointProsecutionGuidance,
with the Joint Guidance on Corporate Prosecutions being applicable, where relevant,
in deciding whether to prosecute.
The OECD is supportive of the approach taken by the UK Government in relation
to the Bribery Act (see 2009 Recommendation of the Organisation for Economic
Co-operation and Development) and in reference to facilitation payments have
said that
Exemptions in this context create artificial distinctions that are difficult to enforce,
undermine corporate anti-bribery procedures, confuse anti-bribery communica-
tion with employees and other associated persons, perpetuate an existing 'culture'
of bribery and have the potential to be abused.
22.5 Consequences of offences under the Bribery Act
22.5.1 Penalties
An individual guilty of the offences of giving or receiving a bribe or bribing a foreign
public official is liable for imprisonment for a term not exceeding 10 years, or to a fine,
or to both.
Companies or other entities guilty of an offence under sections 1, 2 or 6 are liable
on conviction on indictment to a fine. Companies guilty of the crime of a commercial
organization failing to prevent bribery are punishable by an unlimited fine.
In addition, a convicted individual or organization may be subject to a confiscation
order under the Proceeds of Crime Act 2002, while a company director who is
convictedmaybedisqualiiedundertheCompanyDirectorsDisqualiicationAct
1986. Those commercial organizations operating in public sector procurement may
also find their organization debarred from tendering where they have failed to
prevent bribery, though the debarment is discretionary rather than, as first thought,
mandatory under the EU Procurement Directive (Directive 2004/18). A new EU
