Lawyers urge companies to study the guidance

The Ministry of Justice (MoJ) has today issued draft guidance for companies who wish to avoid being charged under the new Bribery Act.

The document introducing the draft guidance is made up of six principles to be applied by companies to their business dealings, including risk assessment, top level commitment, due diligence, clear, practical and accessible policies and procedures, effective implementation, monitoring and review.

Eoin O’Shea, partner and head of the Anti-Corruption Group at international business law firm Lawrence Graham LLP (LG), said: “These principles are generally accepted among anti-corruption groups and governments elsewhere in the world and will not come as a great surprise to UK companies which have followed this topic, although some of the text commentary imports quite recent thinking, for example on the subject of protecting against extortion or blackmail.”

Although the guidance is not legally binding it should not be ignored, said O’Shea.

“But any government guidance can only go so far,” he continued. “The world of corporate corruption is highly complex and fast-moving. The courts, the SFO and other enforcement agencies will have the greatest effect on how the Bribery Act changes corporate behaviour.”

“Even after the guidance is in place, an attempt by a company to apply the principles will not necessarily provide a ‘safe haven’ if bribery is committed. Legally, the question of whether a company is guilty of bribery is one for a judge and jury. Prosecutors may have some regard to guidance of this kind but their decisions about charging are constitutionally separate from the government’s views and they must follow their own codes,” he added.

The government’s commitment to provide guidance resulted from pressure by business. Business people were concerned about what they saw as a very tough regime of corporate liability. The guidance was seen as a way to give business some comfort. The Bribery Act will enter into force in April 2011.

StragegicRISK’s guide on how to protect yourself from bribery