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Kicking out the kick-backs

The Bribery Act was rushed through in the final days of the last Parliament. Now, solicitors should act equally quickly to ensure clients have adequate procedures to protect themselves from prosecution, says Nick Burkill

18 May 2010

The Bribery Act has created a new offence for commercial organisations of failing to prevent bribery. It also provides companies with the classic choice of doing something now to create their defence to a prosecution under this provision – or pay the price later. The Act provides only one defence to an organisation if an associated person has paid a bribe to obtain or retain business for the organisation or to obtain or retain an advantage in conducting the organisation’s business. This is that the company had ‘adequate procedures’ designed to prevent people associated with the company from bribing.

Whether or not an organisation’s guidelines are adequate is important: the offence of failing to prevent bribery carries an unlimited fine. While penalties under the old anti-bribery regime have been in the mere tens of millions of pounds – leaving aside liability in foreign jurisdictions, particularly the US – the signals are that the English court views these penalt...

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