Bribery Act comes into play

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What is bribery? It’s a common question that may be easier to answer with the introduction of the Bribery Act, argues Tania Hayes.

It was Labour peer and former Football Association chief Lord Triesman who cried foul.

According to Triesman, the FIFA Vice President, Jack Warner, allegedly asked for £3m to be channelled through him to build an education facility in Trinidad and Tobago to secure his vote for England’s 2018 World Cup bid. Another member allegedly asked for a knighthood.

The Bribery Act 2010 has, as of 1 July – and after some delay – finally come into force in the UK, and its relevance to the FIFA row is clear. The Act creates four key offences: the offer of a bribe; the receipt of a bribe; the payment of a bribe to a foreign public official, and failure of commercial organisations to prevent bribery.

These apply to the public and private sectors – no entity, or individual, will be outside the scope of the Act. So, going back to the recent allegations made against FIFA members, these individuals are likely to be classed as foreign public officials, given the public nature of FIFA as the international football federation.

This would make Lord Triesman vulnerable had he acquiesced to the requests from Warner et al (there is absolutely no suggestion that he did). The key test would be how a reasonable person in the UK would expect FIFA officials to perform their function. How would we expect them to decide on the winning World Cup bid?

Well, I hope I do not speak only for myself when I say I would like them to make their decision based on the merits of the bids, not on the potential for boosting their bank balance or receiving a knighthood.

The devil lies in the detail with this law. A financial or other advantage could be anything, so individuals and organisations will need to analyse their dealings to ensure they stay true to the Act, particularly over gifts and hospitality. Businesses will be held accountable for the actions of intermediaries acting on their behalf – whether or not they ratify unorthodox behaviour – on the basis that, ultimately, they are the beneficiaries of improper acts.

To assist businesses in protecting themselves, the Ministry of Justice (MoJ) has published comprehensive guidance on the Bribery Act 2010, aimed at commercial organisations in particular. The emphasis is on proportionality and adopting a risk-based approach to business dealings.

There are, however, case studies that will help you understand the application of proportionality in determining whether a situation presents the risk of bribery. Senior officers in firms are strongly encouraged to adopt the MoJ’s principles-based approach to insulate their business from the risk of prosecution for failure to prevent bribery.

The principles are: proportionate procedures; top-level commitment; risk assessment; due diligence; communication and training, and monitoring and review

These words will be familiar from the Money Laundering Regulations 2007. It is possible to update existing systems to incorporate obligations under the Bribery Act.

Tania Hayes is AAT's Head of Professional Standards & Strategy.

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