Draft Bribery Bill - Joint Committee on the Draft Bribery Bill Contents


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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