By Jaan Larner, Consultant Solicitor, Keystone Law

Businesses will be somewhat relieved that the guidance to the Bribery Act 2010 legislation has adopted a practical approach insofar as the anti-bribery procedures a business puts in place should be proportionate to the bribery risks the business faces.

The guidance states that corporate hospitality of a reasonable and proportionate nature is not prohibited. For example, taking a client to a football match or Wimbledon will not fall within the definition of a bribe if it is for genuine business development purposes and such entertainment is normal for the industry in which the business operates. The guidance recognises that reasonable and proportionate hospitality which promotes business is both an established principle and acceptable. If it is not lavish and is normal for your industry, it should not amount to an offence and detailed examples are provided in the guidance.

Adequate Procedures Defence

Specifically in relation to the new offence of the failure of a commercial organisation to prevent bribery, the Act provides a defence where "adequate procedures" have been adopted by the commercial organisation designed to prevent those "associated" with it from undertaking such conduct.

While "adequate procedures" are not defined, the guidance sets out six general principles, which should be followed across all industries, adopting a risk-based approach.

The principles state that businesses should:

1. Adopt proportionate procedures.

2. Make top-level commitment.

3. Conduct a bribery risk assessment.

4. Perform due diligence on all of their commercial relationships.

5. Commit to clear communication and training.

6. Undertake ongoing monitoring and review.

By following the principles, a business can demonstrate its commitment to combating corrupt practices and go a long way to mitigating its liability for the actions of employees in contravention of the policy.

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