Additional memorandum submitted by Professor
Wells (BB 22)
I would like to add the following to my written
evidence (the answers to the supplementary questions).
If clause 5 is amended to remove the need to prove
that the failure to prevent the bribe was negligent, there should
be added a rider to the adequate procedure defence something along
the lines of the following:
"For the avoidance of doubt, the defence
of adequate procedures does not apply where the failure to prevent
the offence is attributable to the negligence, neglect or fault
of one or more senior officers."
I think the complexity is reduced as soon as
the requirement to prove that the failure to prevent in the first
place was negligent. And in many cases (those where the senior
officers have not been at fault in relation to the specific bribe)
the complexity will be removed altogether.
Under this proposal the steps would be:
(i) prove the offence took place;
(ii) from this would follow there was a failure
to prevent it;
(iii) the defence of adequate procedures can
be raised; and
(iv) it is hard to imagine that the procedures
could be shown to be adequate where senior officers were negligent
in the implementation or monitoring of any procedures. The avoidance
of doubt clause puts that into concrete form to save lengthy and
expensive legal argument.
June 2009
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