by Neil McGregor – Managing Partner of McGregor & Partners and Member of the BRCC Board of Directors
Just before Christmas 2014 a press release was issued by the UK’s Serious Fraud Office on another conviction for overseas bribery. Anyone wondering what has happened to the tougher regime under the UK’s Bribery Act 2010 should notice that the prosecution in this case was under the former legislation which was replaced by the 2010 Act.
The wheels grind may slowly, but it should not be thought that there is no wish to enforce the tougher provisions in the 2010 Act. In December 2014 the UK Government published a national anti-corruption plan, which includes a section on overseas bribery and corruption. It also notes that the City of London Police has been awarded EU funding to create an EU Foreign Bribery Taskforce. Whilst reported cases so far may relate to “third world” or developing countries, it would clearly be a mistake to suppose that there is neither appetite nor funding for the UK police to investigate cases involving other EU countries.
The anti-corruption plan makes specific mention of the new offence of failure of commercial organisations to prevent bribery – as “bribery” is understood in the UK. Quite apart from differing perceptions as to what conduct is, or is not, illegal – or in accordance with local customs, this new offence affects any business organisation which operates in the UK and in Romania, even if through a sister company or subsidiary. It also affects businesses which operate in Romania through an agent or representative. Accidents can and do happen – but, as with health and safety legislation, the approach is to require businesses to take steps to prevent them, such as risk assessments, procedures and training. If an “accident” does happen in Romania and there is a link to a business operating in the UK, that business should expect to face a very difficult situation if it cannot show that it had “adequate procedures” to prevent bribery. The time to act is now, for everyone’s health and safety – the consequences of “accidents” in Romania can now be felt in the UK.