Long a common-law crime in Scotland, bribery was seldom prosecuted and only rarely mentioned. Then in 2010 came the Bribery Act – a radical piece of UK legislation that has completely transformed attitudes to gift-giving and the use of financial incentives in a business context.
At its simplest level, the Bribery Act codified an existing common law crime. But it went much further than that. It introduced a new offence of bribing foreign public officials and allowed the UK courts to prosecute for foreign acts of bribery provided the accused had a connection to the UK. It also created a corporate offence of failing to prevent bribery. Arguably, this provision has had the most significant effect – introducing a new culture of compliance into boardrooms, with companies preferring to self-report and reach civil settlements with the Crown rather than face the risk of police investigations and possible prosecutions.
The corporate failing to prevent charge in the Bribery Act represents a new strategy by the Government, which has since been replicated in the Criminal Finances Act 2017 to encourage self-investigation and self-reporting in complex financial-type cases. Resources being what they are, it is in reality challenging for the police to thoroughly investigate complex financial cases, particularly those with elements in various jurisdictions. A company, which knows its own staff and processes, and doesn't require to get warrants, has a much better chance of understanding the sequence of events that led to a suspicious transaction. If the company then reports the outcome of its investigation, the Crown is in an ideal position - it has the fruits of a well-resourced inquiry without any of the costs being borne by the state.
When a company self-reports, it is usually with a view to reaching a civil settlement: an agreement to pay a certain sum to the Crown, in return for not being prosecuted. There are no guarantees: in certain circumstances, the Crown may respond to a self-report by ordering a police investigation and thereafter prosecuting. However, only a handful of Bribery Act cases have been prosecuted around the UK. Unlike in England (which has a system of deferred prosecution agreements) there is no judicial input in the civil settlement process.
Companies who discover acts of bribery within their organisation should urgently secure legal advice. An investigation carried out by criminal defence solicitors will be protected by legal professional privilege; one carried out by the company's own staff will not. It is also important to remember that individual members of staff may require independent legal advice, as their interests may well conflict with those of the company.
Stuart Munro, head of Livingstone Brown's Criminal Litigation department, has experience of advising clients (both corporate and individual) on bribery investigations. These are highly sensitive situations which require complete confidentiality. Livingstone Brown's size allows appropriate staff to be deployed immediately, where required.
To find out more about the service the firm can offer in bribery cases, contact Stuart Munro for a confidential discussion on 0141 429 8166 or complete our online enquiry forn.
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