Grey areas remain after revision of Bribery Act guidance

Revised guidance on the Bribery Act, which will come into force on 1 July after being delayed due to widespread business concerns, has met with a mixed response from the legal sector.

Kenneth Clarke
Kenneth Clarke

Justice secretary Kenneth Clarke unveiled the guidance today, detailing the safeguards businesses can put in place to prevent bribery across their organisations.

Clarke confirmed that the main substance of the act, which should have come into force last year, has not changed, adding that the guidance has been drafted following extensive consultation with non-governmental organisations and the business world.

The implementation of the act was put on hold last year over worries that draft guidance was not clear on how the act would be applied.

In a statement Clarke said: “I’ve listened carefully to business representatives to ensure the Bribery Act is implemented fully and in a workable, commonsense way. This is particularly important for small firms that have limited resources. I hope this guidance shows that combating the risks of bribery is largely about common sense, not burdensome procedures.”

However, Baker & McKenzie partner Ian Mason said that while the guidance provides clarification in areas such as corporate hospitality there are still a number of grey areas.

“Sensible judgement will need to be exercised in each case,” he added. “The guidance doesn’t provide complete certainty. Many corporates will still err on the side of caution, until the courts provide some caselaw. However, the SFO only has limited resources, and it’s likely that in practice they will exercise their prosecutor’s discretion to focus on the most serious cases.”

Sam Eastwood, head of the business ethics and anti-corruption group at Norton Rose, agrees that the guidance may have limited weight in English courts, pointing out that it can be revised by the Government at any time.

“The ultimate effect of the act will depend on how it’s interpreted by prosecutors and, ultimately, the courts and there remains a risk that they’ll take a stricter line on some issues like ’associated persons’ or the territorial scope of the act,” he said.

“With just more than three months to go, businesses should now be focused on conducting a risk assessment, implementing proportionate policies and procedures, training their staff and getting reporting structures ready and implemented.”