A relevant commercial organization has a complete defense to a failure to prevent bribery charge where it can show that it had in place adequate procedures to prevent bribery.
The Ministry of Justice Guidance sets out six principles that should inform a commercial organization’s procedures.
Principle 1: Proportionate procedures. “A commercial organisation’s procedures to prevent bribery by persons associated with it are proportionate to the bribery risks it faces and to the nature, scale and complexity of the commercial organisation’s activities. They are also clear, practical, accessible, effectively implemented and enforced.”
Principle 2: Top-level commitment. “The top-level management of a commercial organisation (be it a board of directors, the owners or any other equivalent body or person) are committed to preventing bribery by persons associated with it. They foster a culture within the organisation in which bribery is never acceptable.”
Principle 3: Risk Assessment. “The commercial organisation assesses the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with it. The assessment is periodic, informed and documented.”
Principle 4: Due Diligence. “The commercial organisation applies due diligence procedures, taking a proportionate and risk based approach in respect of persons who perform or will perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.”
Principle 5: Communication (including training). “The commercial organisation seeks to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training, that is proportionate to the risks it faces.”
Principle 6: Monitoring and review. “The commercial organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and makes improvements where necessary.”1
1 Ministry of Justice, The Bribery Act 2010 Guidance, at 21, 23, 25, 27, 29, 31 (2011).