BRIBERY ACT 2010（二）

ACCA F4考試：BRIBERY ACT 2010（二）

THE SIX PRINCIPLES

1. Proportionate procedures

The procedures taken by an organisation should be proportionate to the risks it faces and the nature, scale and complexity of its activities. A small organisation would require different procedures to a large multinational organisation.

2. Top-level commitment

The top-level management should be committed to prevent bribery and foster a culture within the organisation in which bribery is unacceptable.

3. Risk assessment

Organisations should assess the nature and extent of its exposure to risks of bribery, including potential external and internal risks of bribery.

For example, some industries are considered higher risk than others, such as the extractive industries; some overseas markets may be higher risk where there is an absence of anti-bribery legislation.

4. Due diligence

The organisation should apply due diligence procedures in respect of persons who perform services for – or on behalf of – the organisation in order to mitigate bribery risks.

5. Communication

The organisation should ensure its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training, proportionate to the risks it faces. Communication and training enhances awareness and helps to deter bribery.

6. Monitoring and review

The organisation should monitor and review procedures designed to prevent bribery and make improvements where necessary. The risks an organisation faces may change and, therefore, an organisation should evaluate the effectiveness of its anti-bribery procedures and adapt where necessary.

The question of whether an organisation had adequate procedures in place to prevent bribery is a matter that will be determined by the courts by taking into account the circumstances of the case. The onus will, however, be on the organisation to prove it had adequate procedures in place.

It should be noted that genuine hospitality that is reasonable and proportionate is not prohibited by the Act.

PENALTIES

An individual found guilty is liable to imprisonment for a maximum of 10 years. (This has been increased from seven years.)

An organisation found guilty is liable to an unlimited fine. The obvious further damage to the organisation is reputational damage and the consequences of this, as well as potential civil claims against directors for the failure to maintain adequate procedures.

CONCLUSION

The Bribery Act 2010 aims to combat bribery and encourage free and fair competition. It replaces outdated and criticised laws on bribery. All of the offences have extra-territorial application. Of most significance is the introduction of a new offence against commercial organisations that fail to prevent a bribe being paid on their behalf, subject to the statutory defence.

Organisations will be responsible for putting adequate procedures in place to prevent bribery; the core principle behind these being proportionality. It is likely accountants will be key to the organisation reviewing risks relating to bribery and implementing adequate procedures and controls.

Sally McQueen is ACCA examinations content manager