Unlike the US Foreign Corrupt Practices Act (FCPA), the Act works to prohibit bribes in the private sector as well as in the public sector. Nor does the Act, unlike the FCPA, provide any exception for so called “facilitation payments” to officials to expedite routine non-discretionary governmental actions such as customs clearances etc. Accordingly, under the Act such payments are bribes and therefore a criminal offence.
Facilitation payments are prevalent in many parts of the world. The Guidance sets the UK’s approach to such payments in an international context. Their eradication is recognised internationally as a long term objective that will require economic and social progress and sustained commitment in those parts of the world where the problem is most prevalent. This laudable long term is of little practical help to businesses facing daily requests for such payments. All that the Guidance and prosecutors can do is to suggest that “prosecutorial discretion” will provide a protection against prosecution in situations where, for example, the payments were small in value and they were not systemic.
The foreign public official offence in the Act is particularly wide as it only requires prosecutors to show that a financial or other advantage was intended to “influence” the official, not that the intention was that the official would act improperly. The Guidance has gone some way to allaying fears that the provision of even a cup of tea to an official could amount to an offence. It makes it clear that reasonable and proportionate hospitality and promotional expenditure on public officials to promote a business, demonstrate its products or services or to establish cordial relations can be legitimate. However, the Guidance provides no “bright line” test and it is for individual businesses to assess their risks and practices in their particular circumstances.
Finally of note is that the primary purpose of the Guidance is to assist businesses in putting in place anti-corruption procedures. “Adequate” anti-corruption procedures are a statutory defense to the corporate offence. The Guidance suggests that businesses should adopt a proportionate and risk-based approach. It promotes six Principles that it suggests should “inform” anti-corruption procedures: (1) Proportionate Procedures; (2) Top-level Commitment; (3) Risk Assessment; (4) Due Diligence; (5) Communication; and (6) Monitoring and Review. However, the Guidance does not provide a “one-size-fits-all” approach or checklists or safe harbours. Businesses are, instead, left to apply the Principles to their own circumstances. For larger businesses this is likely to be a significant compliance burden.