The Bribery Act

1 June 2012

FCPA Update

June 2012, Vol.3, No.11

May 2012, Vol.3, No.10

March 2012, Vol.3, No.8

Client Updates

Deferred Prosecution Agreements in the UK: Draft Code of Practice Published
July 3, 2013

Key takeaways:

  • The draft Code proposes that it be open to prosecutors to invite a corporate to negotiate a Draft Prosecution Agreement (‘DPA’) if there is a reasonable suspicion of offending and there are reasonable grounds for believing that further investigations could provide evidence for a successful prosecution.
  • An important public interest factor in favour of a DPA and against prosecution would be the corporate’s full co-operation in the prosecution of individuals responsible for the corporate’s offending.
  • A DPA would almost always include requirements that the corporate pay a fine, the prosecutor’s costs and, where relevant, compensation or redress for victims.  

Proposed UK Sentencing Guidelines for Corporate Offices
July 1, 2013

Key takeaways:

  • The UK’s Sentencing Council has proposed the first sentencing guidelines for bribery and money laundering offences, along with updated guidelines for fraud. These include the first ever formal sentencing guidelines for corporate offenders.
  • For corporate bribery offences, the basic proposal is for fines to be calculated by taking the gross profit of the contract obtained or sought and applying a multiplier of between 20 and 400% depending on the corporate’s culpability.
  • The proposed guidelines are an important part of the ongoing reform of UK white collar crime enforcement, including the recent adoption of Deferred Prosecution Agreements (‘DPAs’).

Serious Fraud Office Issues New Policies on Self Reporting, Facilitation Payments and Business Expenditures 
October 12, 2012

Key takeaways:

  • On 9 October 2012, the Serious Fraud Office ("SFO") issued new policies and guidance with respect to its approach to certain corruption-related offences. The new policies address the SFO’s approach to self-reporting, facilitation payments and business expenditures. The new policies state that prosecution decisions by the SFO will be based primarily on the Full Code Test in The Code for Crown Prosecutors.
  • The SFO's July 2009 guidance regarding self-reporting of corruption offences by corporates, which indicated a prospect of civil settlements in appropriate cases, is no longer in force. The new policy indicates that there is no presumption in favour of civil settlements in any circumstances and states that self-reporting by corporates—while encouraged—will provide no guarantee that a criminal prosecution will not follow.
  • The new policy on facilitation payments confirms that such payments, regardless of their size or frequency are illegal and may be the subject of criminal prosecution.
  • The new policy regarding business expenditures confirms that bona fide hospitality and business expenditures will not be the subject of prosecutions.

UK Anti-Bribery Efforts Draw Qualified Praise from OECD 
April 5, 2012

Key takeaways:

  • The Bribery Act and increased prosecution of foreign bribery have earned the UK qualified approval from the Organisation for Economic Co-operation and Development (the "OECD"), the main international body monitoring countries’ anti-corruption laws. But UK prosecutors have been criticised for what is portrayed as an emerging practice of settling foreign bribery cases behind closed doors.
  • The OECD's Working Group on bribery commended the UK for its significant increase in foreign bribery enforcement and for the entry into force of the Bribery Act and the Ministry of Justice's publication of Guidance for Commercial Organisations. It also congratulated the UK government for its substantial efforts to raise awareness of the Bribery Act.
  • But it was critical of UK authorities' use of confidentiality when reaching civil settlements with companies accused of foreign bribery, and when providing companies with advice about their transactions and procedures. It also called for clarification of what is acceptable corporate hospitality.

Serious Fraud Office to Recover Tainted Dividends from “Innocent” Investors
January 20, 2012

Key takeaways:

  • Civil recovery proceedings against shareholders to recover dividends deriving wholly or partially from unlawful conduct are firmly on the SFO’s agenda, irrespective of the shareholders’ culpability or knowledge of the underlying conduct.
  • The civil recovery order obtained by the SFO is the latest and final instalment in the SFO’s pursuit of Mabey & Johnson, which has seen the company become the first (and still only one) to be criminally convicted for bribery in the UK and several of its former directors and managers also convicted and sentenced.
  • The SFO is thus sending out a clear message to the investment community that it bears full responsibility for its investment decisions and that the proceeds of investments may be targeted where corruption issues arise.

FCPA Update
November 2011, Vol. 3, No. 4
Trends in Recent SFO Enforcement Activity see page 11

The Private Equity Report 
Summer 2011
Doing Business in the UK Under the Newly-Enacted Bribery Act see page 9  

FCPA Update
August 2011, Vol. 3, No. 1
The U.K. Proceeds of Crime Act and the SFO’s Latest Bribery-Related Settlement see page 5

UK Bribery Act Enters into Force
June 30, 2011

Key takeaways:

  • The Bribery Act comes into force tomorrow, 1 July, 2011.
  • Commercial organisations with business in the UK will be liable for bribery by "associated persons", unless they can prove they have “adequate procedures” in place to prevent bribery.
  • The Serious Fraud Office, the agency charged with enforcing and prosecuting the Act, is expected to adopt a common sense approach to the Act's interpretation and enforcement.

The Bribery Act’s Effect on Debarment
June 16, 2011

Key takeaways:

  • The UK Ministry of Justice has published amended legislation on debarment for bribery offences in the wake of the Bribery Act 2010.
  • Conviction for the offences of bribing another or bribing a foreign public official will attract mandatory debarment from bidding for public contracts.
  • Conviction for the corporate offence of failing to prevent bribery will attract discretionary debarment, but the Ministry has determined that legislation does not need to be amended to effect that. Commercial organisations must remain vigilant and ensure the adequacy of their anti-corruption programmes and procedures so as to minimise the risks of a conviction for the corporate offence and thus the possibility of discretionary debarment from public contracts in the UK.

Serious Fraud Office Reprieved – For the Time Being
June 10, 2011

Key takeaways:

  • UK government plans to split the Serious Fraud Office’s (“SFO”) investigative and prosecuting arms have been abandoned. Theresa May, the Home Secretary, said on 8 June 2011 that the SFO will be “staying as it is,” while she denied reports that the SFO was on “12 months’ notice.”
  • The future of the agency remains uncertain. It will have some relationship with the Economic Crime Command of the newly announced National Crime Agency ("NCA"), but the precise relationship between the SFO, the NCA and the other agencies dealing with economic crime is still to be determined.

The UK Bribery Act 2010: Update on Implementation and Guidance
March 30, 2011

Key Takeaways:

  • The Ministry of Justice today released its long-awaited guidance on the Bribery Act and announced that the Act will be implemented on 1 July 2011.
  • The guidance sets out six principles to guide commercial organisations in establishing "adequate procedures" to prevent bribery. Commercial organisations will need to prove such "adequate procedures" as a defence to the new corporate offence of failure to prevent bribery under section 7 of the Act.
  • The guidance also provides welcome clarification on a number of issues of concern to business, in particular facilitation payments and hospitality, the jurisdictional reach of the Act and the meaning of "associated persons" who can trigger the corporate offence. The guidance has already received praise from business groups for displaying a common sense approach to the operation of the Act.

The UK Bribery Act 2010: Implementation of the Act Delayed
February 3, 2011

  • This client memo discusses the delay in the implementation of the UK Bribery Act 2010 until no earlier than May 2011. The delay will give commercial organisations more time to put anti-bribery procedures in place.

UK Bribery Act Likely to Affect UK Listed Companies
October 1, 2010

  • In this client update we focus specifically on the jurisdictional scope of application of the new corporate offence of failure to prevent bribery under the Bribery Act 2010, and in particular the question of whether companies listed in the UK will become subject to the Act once it comes into force in April 2011.

Bribery Act Update: Ministry of Justice Invites Consultation on Guidance for Commercial Organisations in the Prevention of Bribery
September 22, 2010

  • This client memo addresses the draft guidance the UK Government published last week on "adequate procedures" that companies can put in place to prevent bribery by their "associated persons." Establishing an effective anti-bribery programme is critical for any commercial organisation affected by the Bribery Act, due to come into force in April 2011, because it is the only defence to the new sweeping corporate offence. That offence potentially holds commercial organisations strictly liable for bribes paid for their benefit anywhere in the world by persons performing services for them or on their behalf.

The UK Bribery Act 2010 Update
July 22, 2010

  • This client update discusses the important announcement by the Ministry of Justice that the UK Bribery Act will come into force in April 2011 and outlines the timetable for the Government to publish guidance on what is meant by "adequate procedures".
  • We address the significance of the announcement and confirm that companies will benefit from reviewing their anti-corruption programmes now if they have not done so already.

The UK Bribery Act 2010: a Guide to the New Offences
May 19, 2010

  • This memo discusses the key aspects of the new offences contained in the UK Bribery Act 2010 and illustrates how the scope of the new Act is, in some significant respects, broader than that of the FCPA. The Act is designed to address many of the difficulties that existed in prosecuting companies under the previous UK corruption law and introduces the new strict liability ''corporate offence''. As a result, all companies doing business in the UK should be mindful of the key provisions contained within the Act and should be actively reviewing how they can ensure they have ''adequate procedures'' in place to prevent bribery.

Bribery Bill Update: Anti-Corruption Developments in the UK
March 12, 2010

  • Companies need to review procedures in place to prevent bribery, given the nature of the proposed "corporate offence." The key features of the offence are identified in this client memo.

The Draft Bribery Bill
September 29, 2009

  • This client memo discusses the new draft UK Bribery Bill, which proposes sweeping changes to the existing UK law on bribery.

UK Serious Fraud Office Releases Guidelines on Self-Reporting of Overseas Corruption
August 10, 2009

  • This client update discusses important new guidelines recently released by the UK Serious Fraud Office, which provide a new framework for investigations of international corruption by that agency.

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UK Bribery Act 2010:  Are Your Anti-Bribery Procedures "Adequate"?

 

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Debevoise commentary

DPAs Explained
June 12, 2013 — Commercial Dispute Resolution

By: Karolos Seeger, Matthew Howard Getz, Robin Lööf

Foreign Bribery and Corruption: Sentencing Trends
June 2013 — Practical Law Company

By: Matthew Howard Getz

UK Deferred Prosecution Agreements: How Useful Will They Be?
September 25, 2012 — International Financial Law Review

By: Karolos Seeger, Matthew Howard Getz, Lucy Grouse

UK Banks' Anti-Bribery Test
May 31, 2012 — International Financial Law Review

By: Karolos Seeger, Matthew Howard Getz

Lessons From Review of UK Banks' Anti-Bribery Systems
May 9, 2012 — Law 360

By: Karolos Seeger, Matthew Howard Getz, Warren Balakrishnan

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Lord Goldsmith QC interviewed in "The Firm:Corporate Law in India" CNBC (India), broadcast on 12 August, 2011.

In this programme, Lord Goldsmith QC explains how the UK Bribery Act will apply to firms based in India and elsewhere.

To listen to this programme please click here. This content is from moneycontrol.com.

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Lord Goldsmith QC interviewed in "Law in Action" BBC Radio 4, broadcast on 9 March, 2010.

In this programme, Lord Goldsmith QC explains how the new corporate offence will work in practice . As the former Attorney General makes clear, the fact that the senior management of a company may not have known of any bribery will not provide the company with a defence.

To listen to this programme please click here. This content is from bbc.co.uk.

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View recent comments from Lord Goldsmith QC. This content is from telegraph.co.uk

Lord Goldsmith urges plea bargaining in bribery cases

Bribery Act: Lord Goldsmith says look to the US

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Serious Fraud Office speeches

This content is from sfo.gov.uk.

Private Equity and the UK Bribery Act
June 21, 2011
Speech delivered by Richard Alderman, SFO Director, at Debevoise private equity roundtable

Talking Corruption with the SFO
October 20, 2009
Speech delivered by Richard Alderman, SFO Director, at Debevoise International Corporate Investigations and Defence Lecture

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Debevoise Events & Speaking Engagements

The UK Bribery Act: How its Extraterritorial Reach Affects You and Your Business 
June 4, 2012

The Role of the Judiciary in India's Growth Story; Anti-Corruption Compliance 
March 9-10, 2012

Private Equity and the UK Bribery Act
June 21, 2011

The Impact of the UK Bribery Act on AU Corporations
May 23, 2011

UK Bribery Act Breakfast Seminar
March 10, 2011

Individual Spotlight – The Personal Risks
September 14, 2010

The Fundamentals of the UK Anti-Bribery Compliance
23 June 2010

Defending and Protecting the Corporation: Managing Cross-Border Criminal Liability
15 March 2010

Preparing for the UK Bribery Bill. Are you Ready?
19 January 2010

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Primary Texts
This content is from legislation.gov.uk and the Ministry of Justice website

UK Bribery Act 2010

Ministry of Justice Guidance on Adequate Procedures 

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Please click here to visit our International Corporate Investigations and Defence practice description page.

Key Contact(s):
Lord Goldsmith, QC phgoldsmith@debevoise.com
Partner, London T: +44 20 7786 9088
Karolos Seeger

kseeger@debevoise.com

Partner, London T: +44 20 7786 9042