The Bribery Act 2010

The Bribery Act 2010 came into force on 1 July 2011 and is of fundamental importance to all commercial organisations that either operate or are registered in the UK.

The Act repeals and replaces England’s old, much-criticised, laws on bribery with a new comprehensive anti-bribery code which has enabled both the courts and prosecutors a means to respond more effectively to bribery.

The crime of Bribery is best described as “Occurring when a person offers, gives or promises to give a financial or other advantage to another individual in exchange for improperly performing a relevant function or activity.” The Act can be split into two predominate parts, Individual Offences & The Corporate Offence;

Individual Offences:

The Bribery Act 2010: Section One – Bribing Another Person
The following elements are required to establish this offence:
• A person (the “briber”) must offer, promise or give a financial or other advantage to another person;
• The briber must:
o Intend the advantage either to induce a person to improperly perform a function or activity or reward a person for improperly performing a function or activity; or
o Know or believe that the acceptance of the advantage would itself constitute the improper performance of a function or activity.
The Bribery Act 2010: Section Two – Being Bribed
The general consensus for what constitutes being bribed are as follows;
• A person requests, agrees to receive or accepts a financial or other advantage intending that a function or activity should be performed improperly as a result, whether by himself or another person;
• A person requests, agrees to receive or accepts a financial or other advantage which in itself constitutes the improper performance of a function or activity by him;
• A person requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance of a function or activity;
• Where, in anticipation or as a result of a person requesting, agreeing to receive or accepting a financial or other advantage (“the person being bribed”), a function is performed improperly, whether by the person being bribed, by someone else at the request of the person being bribed or with the agreement or acquiescence of the person being bribed.

The Bribery Act 2010: Section 6 – Bribing Foreign Public Officials
This offence will be committed if a person offers or gives a financial or other advantage to a foreign public official with the intention of influencing the foreign public official and obtaining or retaining business, where the foreign public official was neither permitted nor required by written law to be so influenced.

Territorial Scope

• If the offence is committed in the UK, the nationality of the individual or organisation is irrelevant meaning that the Act will be enforced.
• If the acts or omissions that form part of the offence were committed outside of the UK, the person committing the offence may still be prosecuted if committed by British nationals, a national of a British overseas territory or UK corporate organisations.
• A UK company is not liable for the offences if the bribe is committed abroad by its foreign subsidiary. The foreign subsidiary is also not liable in that situation.

The Corporate Offence

An offence is committed by a commercial organisation when:
• A person “associated” with the commercial organisation bribes another person;
• The bribe is intended to obtain or retain business for the commercial organisation or retain an advantage in the conduct of the organisation’s business.
The Bribery Act 2010 allows such so that it is a defence for the commercial organisation to show that it had adequate procedures in place to prevent bribery being committed by those associated with it. This effectively creates a burden on the corporate organisation to ensure that their anti-corruption procedures are sufficiently robust to stop any employees, agents or other third parties acting on the corporate organisations behalf from committing bribery.
There is no set policy to such procedures, what is sufficient for a small or medium sized organisation will more often than not differ from what would be required for a large multinational firm. However, Adequate Procedure Guidance (“APG”) was set paying close attention to the following 6 principles:
• Proportionate procedures – the procedures an organisation should take must be proportionate to the risks they face. The APG suggests that factors such as an organisation’s size and the nature and complexity of its business will influence the response required;
• Top level commitment – this requires top level management to ensure that the organisation’s staff and those who do business with or for the organisation understand that bribery is never acceptable;
• Risk assessment – this requires organisations to assess the nature and the extent of their exposure to external and internal risk of bribery. This assessment needs to be periodic, informed and documented;
• Due diligence – this is about knowing who you do business with; the APG recommends organisations undertake a proportionate and risk based approach to due diligence in respect of persons who will perform services for and on behalf of the organisation;
• Communication – the government believes the communication of bribery policies and procedures will deter bribery by enhancing awareness of the organisation’s procedures and its commitment to their proper application. Training should be used to raise awareness about the threats posed by bribery in general and the sector areas in which the organisation operates;
• Monitoring and review – an organisation should monitor and review the effectiveness of the procedures they put in place and make improvements where necessary.

Prosecution and penalties
Section 10 of the Bribery Act 2010 requires the authorisation of any prosecution by the director of the appropriate prosecution agency before a case can go ahead, a shift from the old regime which required the consent of the Attorney General for England and Wales. Section 11 explains the penalties for individuals and companies found guilty of committing a crime.
• If an individual is found guilty of a bribery offence, tried as a summary offence, they may be imprisoned for up to 12 months and fined up to £5,000.
• Someone found guilty on indictment, however, faces up to 10 years’ imprisonment and an unlimited fine.
• The crime of a commercial organisation failing to prevent bribery is punishable by an unlimited fine.
In addition, a convicted individual or organisation may be subject to a confiscation order under the Proceeds of Crime Act 2002, while a company director who is convicted may be disqualified under the Company Directors Disqualification Act 1986.
Conclusion

The Act has been described as “the toughest anti-corruption legislation in the world”, and while it may only change little from an individual’s perspective, it puts significant pressure on corporate organisations doing business in the UK to ensure that they have appropriate anti-corruption procedures in place before implementation of the Act.

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