The Bribery Act 2010 has received Royal Assent and will come into force in April 2011. It overhauls the previous legislation and case law, which, having developed in a piecemeal fashion since the nineteenth century, was widely regarded as being in need of reform. The new Act now means it is an offence:
- To offer, promise or give a bribe in the public or private sectors;
- To request, agree to receive or accept a bribe in the public or private sectors;
- To bribe a foreign public official in order to obtain or retain business; and
- For a commercial organisation to fail to prevent bribery.
Bribery is effectively inducing or rewarding someone to perform a function or activity improperly, or where accepting a financial or other advantage is of itself known or believed to be improper. The offences do not have to be committed in the UK to fall within the scope of the Act. The offences carry a maximum penalty of ten years’ imprisonment or an unlimited fine for which employees, directors and businesses can be liable.
The offence of a commercial organisation failing to prevent bribery applies where a person who performs services for the organisation, or on its behalf, commits one of the offences with the intention of obtaining or retaining business or an advantage for the organisation. There is no need for the prosecution to prove an employer’s negligence, but there is a defence if the organisation can show that it had adequate procedures in place to prevent such conduct. Government guidance will be produced on this in due course.
If one of the offences is committed with the consent or connivance of a senior officer or someone purporting to act as such, that individual as well as the organisation may be liable.
Suggestions on what adequate procedures would involve include:
- A company’s board of directors (or similar body) should take responsibility for establishing an anti-corruption culture and programme;
- A senior officer should be responsible for overseeing the anti-corruption programme;
- There should be a clear and unambiguous code of conduct including an anti-corruption element, and procedures should be established to assess the likely risks of corruption arising in a company’s business;
- Employment contracts should expressly state penalties relating to corruption;
- There should be a gifts and hospitality policy to monitor receipt of gifts and entertainment;
- Anti-corruption training should be provided; • There should be financial controls to minimise the scope for corrupt acts to be committed; and
- There should be appropriate whistleblowing procedures to enable employees to report corruption in a safe and confidential manner.