The long wait is over. On 30 March 2011, the UK's Ministry of Justice published its final guidance (the "guidance") under the Bribery Act 2010 (the "Act") about procedures which commercial organisations can put into place to prevent bribery. On the same day, the two principal enforcement authorities, the Serious Fraud Office and the Director of Public Prosecutions, published their own guidance to prosecutors (the "prosecution guidance") on how the Act will be enforced. The Act, which has been described as the most draconian piece of anti-corruption legislation in the world, will come into force on 1 July 2011, bringing to an end over five years of legislative activity to reform UK anti-corruption law. The theory will become practice from then on.
The overall structure of the Act and the guidance have been summarised in previous Alerts.1 This note considers some key issues arising under the final guidance. It also contains, as an Appendix, a summary of the key points in the guidance and the case studies which are part of it.
Status of the guidance
Before turning to specific issues, the status of the new guidance should be explained. The Act creates a strict liability offence (the "corporate offence") for commercial organisations (broadly, all businesses) if a person "associated with" the organisation commits bribery. It is a defence for the organisation to prove that it had "adequate procedures" in place to prevent bribery. The Act mandates the Ministry of Justice to publish guidance on what would constitute "adequate procedures" for this purpose.
The Act does not mandate any other guidance, for example on other controversial issues such as the territorial scope of the Act or the meaning of "associated". However, the guidance in its final form contains a large amount of material which goes far beyond defining what are, and what are not, "adequate procedures". To the extent that the final guidance goes beyond the mandate in the Act, it is not binding on the courts. For example, it would be open to a court to hold that the guidance was wrong in its assessment of the territorial scope of the Act, or that the case studies contained in the guidance are based on a misconception as the law.
In practice, this issue is likely to be more theoretical than real. Prosecutors are highly unlikely to pursue cases based on actions which appear lawful under the guidance, but which they think are nevertheless outlawed by the strict wording of the Act. Faced...