After a long time of uncertainty and speculation, the Bribery
Act 2010 finally became law today, 1 July 2011.
For all businesses operating in the UK, the Bribery Act should be
of concern, particularly to senior management, and even the most
scrupulous. All business should reconsider their compliance
programmes, if they have not done so already.
It may be distasteful to be concerned with the subject, but the Act
creates serious risks of criminal liability for individuals
(including not only the briber but also managers of the briber) and
the business which employs the briber. The new corporate offence of
failure to prevent bribery has caused much concern, making it far
easier for the prosecutors to attack businesses.
The Act replaces the previous anti-corruption and bribery laws,
e.g. the Public Bodies Corrupt Practices Act 1889, the Prevention
of Corruption Act 1906 and the Prevention of Corruption Act 1916
and abolishes the previous common law offences.
The Act goes much further. It is not just a "public
sector" concern. It is not just an "international
trade" concern.
The Act is intended to "provide a modern and comprehensive
scheme of bribery offences to equip prosecutors and courts to deal
effectively with bribery at home and abroad."
The Act has been described as just one part of a broader attempt to
improve the UK's record in this area, which includes new vigour
on the part of the Serious Fraud Office, as indicated by recent
successful prosecutions.
The Act is a response to long-term pressure from the Organization
for Economic Co-Operation and Development for the UK's lack of
clear substantive prohibitions on bribery, and failure to implement
comprehensively and enforce its obligations under the OECD
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions.
It is an offence under the Act to bribe another person or to
allow oneself to be bribed, and specifically it is an offence to
bribe foreign public officials. These offences are punishable by an
unlimited fine and/or a prison sentence of up to 10 years. The Act
also makes failing to prevent bribery an offence punishable by an
unlimited fine. The only defence is that the business had in place
adequate procedures to prevent bribery; the Ministry of Justice has
issued helpful Guidance on what those procedures should
reflect.
Businesses should review their practices, and be prepared to change
their compliance procedures to incorporate the required
changes.
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.