The Bribery Act 2010 and changes will it bring about

The Bribery Act 2010

The Bribery Act 2010 brings about a reform to the criminal law in order to provide a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to cases of bribery.

What is meant by bribery?

Bribery is an act where some form of incentive is provided to an individual or company, in most cases monetary, in order for them to undertake a particular act.

It has been common practice for many UK companies to provide money to foreign officials in order to facilitate business transactions abroad. This is seen as a form of bribery.

When did the Bribery Act receive royal assent?

The Bribery Act received royal assent on the 8th April 2010.

What changes are brought about by the Bribery Act 2010?

The main changes brought about by the Act are as follows:

      To provide an effective legal framework to combat bribery in the public or private sectors

• Replace the complex system of offences at common law and in the Prevention of Corruption Acts 1889-1916
• Creating two general offences covering the offering, promising or giving of an advantage, and requesting, agreeing to receive or accepting an advantage
• Creating an offence of bribery of a foreign public official
• Creating a new offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf
• Requiring the Secretary of State to publish guidance about procedures that relevant commercial organisations can put in place to prevent bribery on their behalf
• Helping to tackle the threat that bribery poses to economic progress and development around the world

What are the specific offences under the Bribery Act?

The specific offences under the Bribery Act can be split into the following categories:

•       Offence of bribing another person
•       Offences relating to being bribed
•       Offence of bribery of a foreign public official
•       Offence of failure to prevent bribery

Offence of bribing another person

This offence is concerned with the conduct of the individual making the payment as part of the bribe. In this case the payer must be shown to have given, offered or promised an advantage to the recipient with the intention to induce the recipient to perform a relevant function or activity improperly or to reward the recipient for such conduct.

Does the offer or promise have to be done directly?

In order to prove this offence the offer or promise can be made directly by the individual involved or through a third party.

Does the person who the advantage is offered to have to be the same person to perform the required function?

In order for this offence to be proven it is immaterial as to whether the person who is offered the advantage is the same person who is intended to perform the function.

Offences relating to being bribed

This offence is concerned specifically with the conduct of the individual who is the recipient of the bribe. In order to prove this offence it must be shown that the recipient requested, agreed to receive, or accepted an advantage intending that, in consequence a relevant activity or function should be performed improperly.

Does it matter how the recipient received the benefit?

For the purpose of the act it does not matter how the recipient received the benefit, whether this was done directly or through a third party. The important thing to note is the receipt of the bribe.

Does the benefit have to be intended for that person or for another?

In order for the offence to be proven it is immaterial as to whether the benefit is intended for the recipient or for another person.

Offence of bribery of a foreign public official

This is a completely new offence which has been introduced by the Bribery Act where it can be proven that an advantage not legitimately due was offered, promised or given to a foreign public official with the intention of both of the following:

•       Of influencing the foreign public official as an official
•       Of obtaining or retaining business

Offence of failure to prevent bribery

This is another offence which has been introduced by the Bribery Act 2010 and states that a commercial organisation whether that is a corporate or a partnership may be guilty in the following circumstances:

• Where a bribe has been made by a person performing services for or on behalf of another and the bribe was in connection with that other’s business
• Where the person or persons responsible in the organisation for preventing bribes has been negligent in the performing of that duty

This offence effectively ensures that companies will be vicariously liable for the actions of their employees meaning that they will effectively be deterred from directly or indirectly promoting a culture of bribery within their company.

Is there any defence for a company when charged with the fourth offence?

For a company charged with failure to prevent bribery there is a defence for the company to show that there were adequate procedures in place designed to prevent employees or agents committing bribery.

Will this defence apply in all scenarios?

This defence will not apply if the person whose responsibility it was to prevent the bribery was one of the following:

•       A director
•       Manager
•       An equivalent person within the organisation

Have there been any criticisms of the Act?

Many corporate executives have stated their concern that the offences in relation to certain payments will place them at a competitive disadvantage to companies within the United States. The reason for this is that measures in the new law such as the ban on facilitation payments go further than the equivalent legislation in the United States.

The act has also been criticised for being too strict with many feeling that it was simply rushed through Parliament.

What are the positives to take from the Act?

Many people feel that the strict nature of the act sends out a clear message that the UK will not tolerate bribery and that it will also have a positive effect on developing countries.