UK: Revised Guidance From The DoJ: Would Your Organisation's Compliance Programme Stand Up To Scrutiny?

Last Updated: 27 June 2019
Article by Laura Ford and Sam Millar

"Adequate procedures" under the UK Bribery Act is a well-known term in Compliance circles. Having adequate procedures is the only defence to a charge against a commercial organisation of failing to prevent bribery.

US prosecutors speak of the requirement to have an "effective" compliance programme. Whilst not an absolute defence, companies that have an effective compliance programme will benefit from more lenient treatment in the US with regards to charging decisions and monetary penalties and when deciding on whether a monitor or ongoing reporting obligations are required following commission of a bribery offence.

A key difficulty facing companies both in the UK and the US is determining what exactly "adequate procedures" means, or what an "effective" compliance programme is.

The UK Ministry of Justice issued guidance on adequate procedures when the Bribery Act came into force ("the UK guidance", although there has been no case law in the intervening years to assist in understanding how the guidance will be applied in practice.

Some assistance has been rendered on the meaning of an having effective compliance programme from a US perspective recently. On 30 April 2019, the US Department of Justice ("DOJ") issued revised guidance on "Evaluation of Corporate Compliance Programs" ("the revised Guidance"), which states that prosecutors should ask three fundamental questions when evaluating a company’s compliance program:

  1. Is the compliance programme well-designed?
  2. Is the programme being applied earnestly and in good faith, i.e., is the compliance programme effectively implemented?
  3. Does the compliance programme work in practice?

The revised guidance provides a detailed, practical, road map to allow for a thorough assessment of any organisation's compliance programme, allowing the C-suite and senior management to understand whether their programme is fit to withstand prosecutorial scrutiny, whether from the UK, US or elsewhere.

Is the Compliance Programme well-designed?

In considering whether the programme is well-designed, the revised Guidance directs prosecutors to consider:

  • Risk assessment - as in the UK, the bribery risk assessment is key. It should take into account factors such as the location of the business, the industry sector, the competitiveness of the market, the regulatory landscape, potential clients and business partners, transactions with foreign governments and foreign officials, the use of gifts, travel, and entertainment expenses, charitable and political donations etc. Importantly, risk assessments must be updated periodically to take account of evolving risks.
  • Policies and procedures - again in common with the UK, the revised Guidance focusses on the requirement for tailored policies and procedures that seek to both document and effect ethical norms within the organisation and mitigate the specific risks identified during the risk assessment process. Interestingly, the revised guidance highlights the importance of business units being consulted prior to the roll out of revised policies and procedures, an issue which, if missed, often causes consternation in an organisation. Policies and procedures should be tailored, accessible (eg, in multiple languages where necessary) and updated regularly to meet evolving risks.
  • Training and communications - the revised guidance states that prosecutors should assess whether the company's policies and procedures have been integrated effectively, through periodic training and certification for directors, officers, relevant employees, agents and business partners (as appropriate). The mode of training should take into account the audience's size, sophistication and subject matter expertise. Case studies and practical advice on real life scenarios may be appropriate, taking into account lessons learned where appropriate.
  • Confidential reporting structure and investigation process - the revised guidance specifically draws out the importance of having an efficient and trusted mechanism for anonymous or confidential reporting of suspected breaches. Complaints should be routed to proper personnel and investigations completed thoroughly and in a timely manner. This element is only mentioned briefly in the UK guidance but is undoubtedly key in detecting and preventing misconduct.
  • Third-party management - as with the UK guidance, the importance of applying continuous, proportionate due diligence to monitor third-party relationships (including agents, consultants, and distributors) is specifically drawn out. The organisation should understand the qualifications, reputation and associations of third party partners and the clear business rationale for their engagement. Clear contract terms and ongoing monitoring of the relationship should be implemented.
  • Mergers and acquisitions - only touched upon briefly in the UK guidance, the revised guidance gives some detail on the importance of M&A due diligence. In particular, it notes that flawed or incomplete due diligence can allow misconduct to continue at the target company and highlights the importance of tracking the implementation of remedial actions through into the acquired business.

Is the Compliance Programme effectively implemented?

A compliance programme may appear "gold-plated" on paper, but it will only be effective if implemented effectively. In assessing this, the revised guidance requires prosecutors to consider:

  • Commitment by senior leaders and middle management - as per the UK requirement for top level involvement in bribery prevention, the revised guidance highlights the need to consider conduct at the top (e.g. senior leaders), shared commitment among middle-management stakeholders (e.g., operational managers, finance, procurement, legal, human resources) and the effectiveness of oversight by the board of directors.
  • Autonomy and resources - prosecutors should consider whether those charged with day to day oversight of the compliance programme have (1) sufficient seniority and stature; (2) sufficient experience, qualification and resources to effectively undertake the requisite auditing, documentation, and analysis; and (3) sufficient autonomy to access to the board of directors or the board’s audit committee. Whatever the size of the organisation, compliance personnel should be empowered.
  • Incentives and disciplinary measures - the revised guidance highlights the importance of having in place incentives for compliance and disincentives for non-compliance. Promotions, rewards and bonuses might be placed in balance to disciplinary procedures, up to and including termination to encourage compliance. The revised guidance notes that the publication of disciplinary action (anonymised as necessary) can promote positive behaviours.

Does the Compliance Programme actually work in practice?

US prosecutors are required to assess the adequacy and effectiveness of the corporation's compliance programme at both the time of the offence as well as at the time of a charging decision, whereas an assessment of adequate procedures as a defence to the offence of failing to prevent bribery in the UK only need consider the programme that was in place at the time of the offending.

The revised guidance notes that the existence of misconduct does not, by itself, mean that a compliance programme has failed or was ineffective at the time of the offence, accepting that it is an insurmountable task for any compliance programme to prevent all criminal activity by a corporation's employees.

Prosecutors will assess, however, whether the compliance programme did in fact operate to identify the misconduct and whether it resulted in timely remediation and self-reporting. In those circumstance, the prosecutor will view the occurrence as an indicator that the compliance programme was working effectively in practice.

In assessing the programme at the time of the charging decision, prosecutors will consider whether it has the capacity to allow for continuous improvement, evolving over time to address existing and changing risks. They will also consider whether the company conducted an adequate and honest root cause analysis of the contributing factors to the misconduct and implemented remedial actions to prevent its reoccurrence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions