The Bribery Act 2010 covers the criminal law relating to bribery in the UK and will come into force on 1 July 2011.
The legislation is widely drafted and provides for the following offences:-
- Receiving a bribe
- Paying a bribe
- Bribing a foreign official
- A corporate offence of failing to prevent bribery
Giving or Receiving Bribes
An offence of giving a bribe will be committed if a financial or other advantage is offered with the aim of inducing (or awarding) a recipient to carry out a “relevant function or activity” “improperly”.
An offence of receiving a bribe will be committed if a financial or other advantage is received with the intention that a “relevant function or activity” should be performed “improperly”.
“Relevant function or activity” includes business activities and functions of a public nature which are intended to be performed independently and in good faith. To determine whether “Improper performance” has taken place it will be considered whether the act breaches the expectation of what a reasonable person in the UK would expect from the individual in the role.
Bribery of foreign officials
This is where a financial or other advantage is offered to such an official in the absence of legal permission in order to influence the official or retain or obtain business.
Failure of commercial organisations to prevent bribery
An offence will be committed under this section of the legislation if a person associated with a corporate or commercial organisation bribes another person to obtain or retain a business advantage and the organisation is unable to demonstrate that they had sufficient procedures in place to prevent the bribes. Persons associated with the organisation now includes employees as well as agents and external third parties.
By means of a defence, companies must now be sure that they have “adequate” and tailored anti-corruption procedures in place. The legislation also provides powers to permit prosecution of both domestic and foreign companies, providing they have some presence in the UK.
If found guilty of committing bribery under the Act, individuals will face up to 10 years in prison and an unlimited fine. A company will face an unlimited fine if it is found to have failed to prevent a bribe taking place.
Companies should now take the opportunity before the legislation comes into force to assess the bribery risks they face and ensure that they have appropriate controls in place to meet the demands of the legislation and mitigate risks presented. Schemes to consistently monitor risks going forward should be put in place and consideration given to how the use of agents and third party intermediaries in your business would be construed under the terms of the legislation.
Many commentators also believe the scope of the law is such as to bring a greater focus and scrutiny on corporate hospitality events and those who provide or receive them. It may be recommended that companies develop corporate hospitality policies such as keeping accurate records and implementing limits on corporate hospitality given or received.
Individuals or corporate entities who wish to know more about the Bribery Act 2010 should contact our Corporate Department who will be happy to assist.