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Charlie Monteith on U.K. Bribery Act Issues

In case you were sleeping last week …

The U.K. Bribery Act, originally scheduled to “go live” in Fall 2010 and then pushed back to April 2011, has been further delayed so that guidance on the Act can be developed. A week ago, the U.K. Ministry of Justice confirmed the delay and a spokesperson said: “We are working on the guidance to make it practical and comprehensive for business. We will come forward with further details in due course. When the guidance is published it will be followed by a three month notice period before implementation of the Act.”‪

What does Charlie Monteith, the former Head of Assurance at the SFO and currently counsel at White & Case in London, think about the delay.

He writes as follows:

“As the former Head of Legal Assurance at the SFO, and the lead drafter of the AG’s guidance on what constitutes the legal elements of the offences under the Bribery Act plus public interest factors for and against prosecution, as well as contributing to the drafting of the Ministry of Justice’s guidance on adequate procedures, I find it perplexing why neither were published at the end of January.

There has already been a great deal of confusing, misleading, and unhelpful information being given out (some by top UK legal firms) about its interpretation, a great deal of which would dissipate if the guidance was to be published. Instead of which, everyone (save for myself, I might add) is still in some confusion over whether hospitality or promotions will trigger an offence, plus a steer on the treatment small facilitation payments would be helpful.

The UK government has said it wants to do a proper assessment of the impact of the Bribery Act on business as part of its committment made last autumn to assess all pending legislation and regulation. Yet the Act has already had two business impact assessments: in 2009 and then again from July to December 2010. It has not changed in any meaningful way since first being presented to Parliament in the spring of 2009, despite the full rigour of parliamentary analysis by all parties in both Houses that lasted nearly a year and ended with a vote of support.

It is frankly difficult to see how there can be any changes now to an Act of Parliament that Parliament (albeit the last one) has approved. That would entail amending the Act and debating and approving the amendments through this Parliament for which there does not appear to be time in this current session due to end in the summer.”

Monteith recently published this piece in the Criminal Law Review.

In it, he notes, among other things as follows.

That the Bribery Act’s failure to prevent bribery offense “is a big stick, but with it comes an enormous carrot of a defence of having ‘adequate procedures’ designed to prevent bribery. (Unlike the FCPA). It may seem an odd thing for a prosecutor to say, but the defence is actually the most important aspect of the whole Act because it gives business the incentive to do something about preventing bribery.”

Other topics covered in Monteith’s article include: the SFO’s approach to enforcement, debarment, disgorgement, and sentencing issues under the Bribery Act.

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