International - Written by on Tuesday, September 29, 2015 8:31 - 0 Comments

BREAKING: FIRST CORPORATE DISPOSAL OF FAILURE TO PREVENT BRIBERY OFFENCE

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thistlesDrum roll.  We now have the first corporate disposal for a violation of the new offence of failure to prevent bribery.

…in Scotland.

Last Friday the Scottish authorities announced a civil settlement with Brand-Rex Limited. The settlement is of note for two reasons.

Firstly, it is the first concluded settlement for a contravention of the Bribery Act 2010, s.7 – corporate failure to prevent bribery by a third party.

It is a classic case on the thorny question of corporate hospitality and that hospitality being misused.

Secondly, it is the third concluded corporate self-report and civil settlement in Scotland. The Scottish system is akin to that operated by the SFO before deferred prosecutions agreement were introduced. It is clear that Scottish system is encouraging self-reports and that the settlements are being progressed in a reasonable timescale.

Here is the announcement from the Crown Office and Procurator Fiscal Service:

The Civil Recovery Unit has today recovered £212,800 under an agreed civil settlement with a Glenrothes based company which accepted that it had benefited from unlawful conduct by a third party.

Brand-Rex Limited is a developer of cabling solutions for network infrastructure and industrial applications, and employs over 300 staff based mainly in Glenrothes.

In June 2015, solicitors acting on behalf of Brand-Rex contacted the Crown Office to disclose an instance of failing to prevent bribery by a third party associated with the company.

Between 2008 and 2012 Brand- Rex operated an incentive scheme known as “Brand Breaks” for UK distributors and installers.  In return for meeting or exceeding sales targets, installers and distributors were eligible for varying degrees of rewards, including foreign holidays.  The Brand Breaks scheme was not in itself unlawful.

However, an independent installer of Brand-Rex products offered his company’s travel tickets to an employee of one of his customers.  This went beyond the intended terms of the scheme, as this customer was an end user of Brand-Rex products, rather than an installer or distributor.  The individual who ultimately received the tickets was in a position to influence decisions as to which company they purchased cabling from.  Personnel from this company and individuals connected to them used these tickets for foreign holidays in 2012 and 2013.

Brand-Rex became aware of this issue through an internal review and launched an extensive investigation conducted by external solicitors and forensic accountants. As a consequences of the investigation, Brand Rex made a self-report to Crown Office and accepted that they failed to prevent this when they should have done, accepting responsibility for a contravention of Section 7 of the Bribery Act 2010.

Under the self-reporting initiative, the case was deemed suitable for civil recovery settlement, rather than criminal prosecution. The settlement has been based on the gross profit of the company related to the misuse of the Brand Breaks scheme.

The company has taken steps to implement new policies and training to ensure that no unlawful conduct will take place in the future.   Linda Hamilton, Head of the Civil Recovery Unit, said:

“Bribery and corruption can distort business and harm legitimate economic development.   Companies are responsible for ensuring that they do not allow their employees or contractors to secure any commercial advantage through bribery.

“In appropriate circumstances such as this, where companies accept that they have failed to prevent bribery and take steps to ensure that it will not occur again, the self-reporting initiative allows for a civil settlement rather than criminal proceedings.

“I would urge any companies who uncover any instances of bribery to notify the Crown Office as soon as possible.

“The money recovered under the self-reporting initiative will be transferred to the Scottish Government to be reinvested back into Scottish communities.”

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