Put measures in place to prevent bribery - UK barrister
Published:Thursday | January 30, 2014 | 12:00 AM
McPherse Thompson, Assistant Business Editor
United Kingdom barrister John McKendrick is urging Jamaican firms which do business in the United Kingdom to put in place adequate procedures now to prevent bribery and other forms of corruption, given Britain's relatively new Bribery Act, which targets overseas corporations.
The Bribery Act 2010, which has been in force for about two years, does not simply target bribery and corruption in the United Kingdom or involving British nationals.
"It has a new offence that applies around the world to any corporate entity that carries on business or part of the business in the United Kingdom," McKendrick told The Gleaner during a visit to the newspaper's offices in Kingston on Tuesday.
He explained that if a commercial organisation is involved in giving or receiving bribes directly or by an associated person, it is committing a criminal offence under British law.
"Even if the company is incorporated in Kingston with head office in Kingston, the UK courts will have jurisdiction if it does part of its business in the UK," said McKendrick, who was on the last leg of a tour of the Caribbean and Latin America.
WORLDWIDE REACH
The new law, he said, has extended the power of England and Wales' Director of Public Prosecutions and the Financial Services Authority in that they will be able to "carry out investigations to get companies worldwide".
It was the insistence of the Organisation for Economic Co-operation and Development (OECD) which, apparently frustrated at the United Kingdom's lack of implementation of the Anti-Bribery Convention that resulted in the passage of the legislation.
"So if any of your readers are sitting on the boards of Jamaican companies or partnerships or do some business in the UK, they need to consider whether or not they comply with English law, even if they are not incorporated in the UK," said McKendrick, who regularly acts on behalf of the British government in the courts.
According to the barrister, companies found in breach of the provisions will be exposed to criminal liability, punishable by unlimited fines.
In that regard, he said, "It's very important for companies here in Jamaica to take steps to ensure that bribery and corruption are diminished and that those companies have in place what is called 'adequate procedures', [as a] defence to the corporate failure to prevent bribery."
The onus will be on the corporate entity to prove it has adequate procedures in place to prevent persons associated with it from bribing another person on its behalf.
McKendrick said criminal investigations will not only have significant, adverse consequences for companies, but also the country in which they are located. Whether it is Jamaica, elsewhere in the Caribbean or Latin America, "it's going to damage people's perception of that area", he said.
JUDGE PROSECUTED
The law has not so far been applied to overseas businesses, but has been used domestically to prosecute, for example, a magistrate who received a bribe of £500 to 'lose' a speeding ticket and was convicted and sentenced to three years in prison, said the barrister.
He further explained that the British law will only have an effect on Jamaican nationals if the giving and receiving of bribes take place in the United Kingdom.
"If it was a British national in Jamaica, then the English courts have jurisdiction. And that is why we have created this additional offence of failing to prevent bribery, but it only applies against the corporate entities, not specifically against the directors."
However, if the director is British and is involved in corruption, he or she can be prosecuted and imprisoned. Likewise, if the director is Jamaican and the bribery takes place in the United Kingdom, he or she can face imprisonment in the United Kingdom.
McKendrick said one of the great difficulties is always in proving cases of bribery because it is often the case that the board of directors know nothing about it because it is arranged tacitly.
"So the act creates a strict liability offence, which ensures that the company can be held liable, even if the board of directors didn't know and … if they were negligent in not knowing," he said.