ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
8. Compliance Expectations 8.1 Compliance Obligations
Monitorships can be imposed as part of a Seri - ous Crime Prevention Order pursuant to Section 19 of the Serious Crime Act 2007 (essentially a civil application), but such an order can only be granted if there are reasonable grounds to believe that such an order would protect the public by preventing, restricting, or disrupting involvement of the corporate in serious crime in England & Wales.
There are no duties on companies to set up a compliance programme to prevent corruption. However, if companies fail to put adequate pro - cedures in place to prevent bribery, they will not have a defence if the company is subsequently charged under Section 7 of the Bribery Act with failure to prevent bribery (discussed previously in this chapter). 8.2 Compliance Guidelines and Best Practices As set out earlier in this chapter, the only formal guidance on what constitutes “adequate proce - dures” for the purposes of Section 7 of the Brib - ery Act was released by the Ministry of Justice which is a government department and not an enforcement body. There are no further guide - lines on compliance issued by the enforcement agencies. However, there is guidance, issued by the enforcement bodies, on their approach to deciding whether to bring a prosecution under the Act, which includes a focus on a company’s history of compliance and current compliance regimes. 8.3 Compliance Monitorships Monitorships can be imposed upon a corporate as part of the conditions of a Deferred Prosecu - tion Agreement. They cannot be imposed by a court as part of a sentence on conviction. There have been instances in the past of a Crown Court approving of monitorships agreed between the prosecution and defence on a guilty plea for cor - ruption offences, but such agreements attracted significant judicial criticism in R v Innospec (pre- DPA regime created by the Crime and Courts Act 2013).
9. Assessment 9.1 Assessment of the Applicable Enforced Legislation
The Bribery Act was scrutinised by the UK Parliament’s House of Lords Select Commit - tee in March 2019. The Committee was largely positive about the Act stating that it had been widely praised. Some of the committee’s sug - gestions included that power of the Directors of the enforcement bodies should be delegated so that prosecutions could be initiated by officials at a lower level. The current requirements is for prosecutions to be initiated only with the written consent of one of the Directors. The Committee concluded that the government’s guidance on the boundary between bribery and legitimate corporate hospitality was as clear as can be expected. However, the Committee invited the Ministry of Justice to consider stat - ing clearer examples of what might constitute acceptable corporate hospitality, as the Act may have had an overly deterrent effect. The Committee also suggested that the guid - ance on the defence for the failure to prevent bribery offence be expanded to suggest proce - dures which are likely to provide a good defence.
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