Ignorantia juris non excusat

The Bribery Act 2010 came into force on 1 July 2011. The Act repealed the UK’s patchwork of statutory and common law anti-corruption provisions and replaced them with a series of coherent offences. Although this change was driven by national scandals and international pressure, the end product was a world-leading piece of legislation aimed at ensuring ethical business practices.

Four years have passed since commencement and while the rhetoric remains strong, business leaders and commentators have questioned whether the Act has had the intended impact. It has been claimed that anti-bribery and corruption policies have been expensive for businesses to implement and actively monitor, particularly when the Act extends to overseas agents. Complaints have been made about the quality of guidance and many oppose the ban on facilitation payments when the global business community treats them as routine. It is also conspicuous that only a handful of individuals, and no corporates, have been prosecuted under the Act.

Solicitors advising small and medium-sized enterprises (SMEs) in the UK know that the sector is booming. In recent years SMEs have provided around half of all private sector employment and turnover. And those SMEs are big exporters. Perhaps knowing this, and perhaps because of concerns that the anti-bribery and corruption message was not ‘sufficiently percolating through the SME sector’, the Department for Business, Innovation and Skills (BIS) and the Ministry of Justice (MoJ) recently commissioned research on SME awareness and response to the Act.

The results of a survey of 500 SMEs make for uncomfortable reading and support critics of the Act. The headline finding is that only 56 per cent of respondents had heard of the legislation; this figure rises to 66 per cent if those aware of the corporate offence (but not the Act’s name) are included.

MoJ guidance, issued in March 2011, has had little impact: only 26 per cent of those SMEs that had heard of the Act were also aware of the guidance, of which 75 per cent went on to read it. As to SME response, just 33 per cent had assessed the risks of bribery and only 42 per cent had taken preventative measures.

However, prosecutors in the UK have been busy. In December 2014 the Serious Fraud Office (SFO) secured its first convictions against individuals in a boiler room fraud case. Meanwhile, the Crown Prosecution Service (CPS) has been prosecuting small-scale offenders under the Act for years. For an Act that has no retrospective effect, prosecution delay is to be expected and a stream of cases will inevitably follow. The takeaway point is that UK business is not yet doing enough. Solicitors can and should play a key role in advising clients and helping them adopt and maintain proportionate policies against the insidious threat of bribery and corruption. SJ

Christopher Burt is a solicitor at Moon Beever

@MoonBeever

www.moonbeever.com