From the perspective of global anti-bribery compliance, regardless of whether an international legal practitioner or in-house counsel focuses on the UK Bribery Act, FCPA, or other legal regimes, the UK’s Guidance for Commercial Organisations (“GCO”) is an invaluable tool in designing and implementing compliance programs. Many if not most of the principles are conceptually similar to the core principles associated with compliance programs endorsed under other legal regimes.
But in terms of the applicability of the GCO under the UK Bribery Act, the OECD’s recentPhase 3 Report on Implementing the OECD Anti-Bribery Convention in the United Kingdom (“Phase 3 Report”) provides useful insights. The Phase 3 Report states that the “GCO does not have the force of law and is not binding on prosecutors or courts.” Indeed, the GCO points out that “whether an organisation had adequate procedures in place to prevent bribery in the context of a particular prosecution is a matter that can only be resolved by the courts taking into account the particular facts and circumstances of the case.” Moreover, Section 9(2) of the UK Bribery Act specifically provides for the GCO to be amended from time to time.
Nonetheless, the Phase 3 Report emphasizes that the “GCO is a factor that prosecutors would consider in charging decisions.” In this regard, the Joint Prosecution Guidance provides that “[p]rosecutors must take [the GCO] into account when considering whether the procedures put in place by commercial organisations are adequate to prevent persons performing services for or on their behalf from bribing.” Thus, from a strictly legal standpoint, the GCO cannot provide a safe harbor to commercial organisations. Yet, from a practical standpoint, the GCO may, in effect, provide a form of safe harbor for commercial organisations subject to the jurisdiction of the UK Bribery Act.
