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The long-awaited Bribery Act 2010 was today (8th April) given Royal Assent and so has passed into law.

The purpose of the new act is to reform the existing criminal law (which dates back over 100 years) and to provide a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home or abroad.

 

In short the Act will:

  • provide a more effective legal framework to combat bribery in the public or private sectors 
  • replace the fragmented and complex offences at common law and in the Prevention of Corruption Acts 1889-1916 
  • create two general offences covering the offering, promising or giving of an advantage, and requesting, agreeing to receive or accepting of an advantage 
  • create a discrete offence of bribery of a foreign public official 
  • create a new offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf (it will be a defence if the organisation has adequate procedures in place to prevent bribery) 
  • require the Secretary of State to publish guidance about procedures that relevant commercial organisations can put in place to prevent bribery on their behalf  
  • help tackle the threat that bribery poses to economic progress and development around the world.

The Act does not come in to immediate effect but is expected to come into force in stages between June and October 2010. This is subject to change should there be, as expected, a change of government following the May 2010 General Election.

In the meantime the business owners need to consider the implications of the Act and how best to deal with the legal implications.

Offences Covered By The Act

  1. The offence of “bribing another person” (also called the “active offence”) – Where a person offers, promises or gives a financial or other advantage to another person to perform improperly a relevant function or activity, or to reward a person for the improper performance of such a function or activity. It does not matter whether the person given the bribe is the same person who will perform the function or activity concerned. 
  2. The offence of “being bribed” (also called the “passive offence”) – Where a person receives or accepts a financial or other advantage to perform a function or activity improperly. It does not matter whether the recipient of the bribe receives it directly or through a third party, or whether it is for the recipient’s benefit or not. 
  3. Bribery of a Foreign Public Official – Where a person directly or through a third party offers, promises or gives any financial or other advantage to a Foreign Public Official (“FPO”) in attempt to influence them in their capacity as a FPO and to obtain or retain business, or an advantage in the conduct of business. 
  4. The Corporate offence of  “failure to prevent bribery”. In this case a commercial organisation could be guilty of bribery where a person associated with the organisation bribes another person intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. Persons “associated” with the organisation could potentially include employees, agents, sub-contractors and joint-venture arrangements (amongst others).

 Punishment For Offences

 The offences of bribing another person, being bribed and bribing a foreign public official are punishable either by an unlimited fine, imprisonment of up to 10 years or both.

 The new corporate offence of failure to prevent bribery is punishable by an unlimited fine.

Is There A Defence To Bribery?

The only likely defence to the new corporate offence of failure to prevent bribery is to show that the organisation had adequate procedures in place to prevent employees or agents committing bribery. This defence cannot apply where it has been proved that a senior officer of the organisation has consented to the offence and both the company and the senior officer will be guilty of the offence. The government will issue guidance in due course on what constitutes adequate procedures; however it is anticipated that this will form a set of principles rather than an in depth guidance material.

The only other defences to any other bribery offence is where a person charged with a bribery offence can prove that the conduct was necessary for the proper exercise of any function of an intelligence service or the armed forces when engaged in active service; or where the bribery was specifically authorised by some written law.

When Should Companies Start Preparing?

Lack of knowledge of the new bribery laws is not a defence to a bribery offence so companies must prepare themselves now. Although government guidance on the defence of adequate procedures has not yet been published, organisations should consider reviewing their existing compliance procedures including a review of their policies relating to hospitality and political contributions and conducting training and a review of contractual arrangements with employees and agents and joint venture arrangements. In addition to this organisations should review their procedures for disciplinary action; selection of agents or business associates and the reporting of suspected bribery activities. Where such policies and procedures and training are not already in place, they should be put in place as a matter of some urgency. The implementation of such policies and procedures will be important to any organisation’s compliance as will on-going training.

Policies required to ensure compliance with the new bribery laws will depend on the nature and structure of each organisation, therefore, organisations are encouraged to seek guidance at the earliest opportunity.

 Disclaimer

 The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

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Category: Business Law

One Response to “The UK Bribery Act Receives Royal Assent”

  1. John Arnold says:

    Why don’t we all just give up business? It seems that almost anything could fall foul of this law.

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