ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
• misconduct in public office – a wilful breach of duty by a public officer amounting to an abuse of the public’s trust (an offence at com - mon law); • corrupt or other improper exercise of police powers and privileges (Section 26 of the Criminal Justice and Courts Act 2015); • multiple offences relating to political dona - tions (see the Political Parties, Elections and Referendums Act 2000); • giving/receiving inducements or rewards for procuring honours (Section 1 of the Honours (Prevention of Abuses) Act 1925); • failures of a member of local authority to declare pecuniary interest (Section 34 of the Localism Act 2011); • providing false or misleading information for allowance claims by members of the House of Commons (Section 10 of the Parliamentary Standards Act 2009); and • offences under the Fraud Act 2006, Theft Act 1968, and the Proceeds of Crime Act 2002 (and the common law offence of cheating the public revenue) can be used to prosecute offences relating to corrupt obtaining and disposal of funds and goods. Aside from criminal offences, there are various public sector codes and disclosure requirements that do not create criminal offences but do cre - ate obligations for those in public roles not to engage in potentially corrupt activity and to declare conflicts of interest. For example, Mem - bers of Parliament are subject to the Ministerial Code, and civil servants are subject to the Civil Service Code (which has its statutory basis in the Constitutional Reform and Governance Act 2010). As Transparency International have observed, the UK’s coverage of activities that could be considered “corrupt” is somewhat patchy. For
example, there are no legal provisions prohibit - ing cronyism and nepotism. 1.3 Guidelines for the Interpretation and Enforcement of National Legislation It is unusual in the law of England & Wales for the government to produce guidelines on the interpretation and enforcement of criminal offences. However, Section 9 of the Bribery Act 2010 imposes a duty on the Secretary of State to publish guidance about the procedures that rel - evant commercial organisations can put in place to prevent persons associated with them from committing bribery – the statutory defence to the much-heralded corporate “failure to prevent” offence under Section 7 of the Act. The Bribery Act guidance provides assistance with the statutory defence under subsection 7(2) that a relevant commercial organisation may prove that it had in place “adequate proce - dures” designed to prevent persons associated with it from committing bribery. Similar duties on the government to issue guidance appear in relation to the new corporate offence of failure to prevent fraud (Section 199 of the Economic Crime and Corporate Transparency Act 2023) and the corporate offences of failure to prevent the facilitation of tax evasion (Sections 45 and 46 of the Criminal Finances Act 2017), which have similar “reasonable procedures” statutory defences. The Bribery Act guidance indicates that adequacy of an organisation’s anti-bribery procedures should be based around six core principles. • Proportionate procedures. • Top-level commitment. • Risk assessment. • Due diligence. • Communication (including training). • Monitoring and review.
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