Bribery has become an increasing problem in businesses in recent years, both in the UK and across the world. In light of this, the Bribery Act 2010 introduced important laws prohibiting bribery and related activity. Criminalising these types of behaviour makes individuals accountable for bribery, and actively encourages companies to take specific steps to minimise the risk of bribery within the business.
The 2010 Act amounts to one of the toughest anti-corruption laws in the world and deals with corrupt behaviour by business organisations and individuals working for them.
What is bribery?
Bribery occurs when an incentive is provided to a person or a company to persuade them to undertake a particular act. The incentive is typically money but it can be anything of value. Examples of bribes include money stuffed in an envelope, stays in luxurious hotels and expensive gifts.
It has been common practice for many UK companies and their agents to provide money to foreign officials in order to facilitate business transactions abroad. This is also form of bribery and will not be tolerated.
Of particular importance for businesses is the offence of a failure by a commercial organisation to prevent the payment of a bribe for the purpose of obtaining/retaining business or a business advantage. However, there is a defence available for companies who have implemented adequate anti-bribery procedures.
What is prohibited by the 2010 Act?
There are four key bribery offences:
- Two general bribery offences creating personal criminal liability in relation to offering, promising or giving an advantage; and requesting, agreeing to receive or accepting an advantage
- Bribery of a foreign public official, and
- Failure by a commercial organisation to prevent a bribe being paid for or on its behalf – a corporate criminal offence
Bribing another person
Where an individual is suspected of bribing another person, they must be shown to have given, offered or promised an advantage to the recipient; and that this was done with the intention to induce the recipient to do something improperly or to reward the recipient for such conduct.
The offer/promise may have been made directly by the individual involved or through a third party for an offence to have been convicted. It is immaterial whether the person offered the bribe is the same person who is intended to perform the function.
For the individual to be convicted, it must be shown that they requested, agreed to receive, or accepted an advantage intending that they would then perform a relevant activity or function improperly as a consequent of the bribe.
It is immaterial how the recipient received the benefit, whether directly or through a third party; and it is immaterial whether the benefit is intended for the recipient – or someone else.
Bribing a foreign public official
It is an offence to offer, promise or give a bribe to a foreign public official with the intention of influencing the foreign public official as an official and to obtain (or retain) business.
Failure to prevent bribery
A business commits an offence if a bribe has been made by someone performing services for or on behalf of another and the bribe was in connection with that other’s business; or where the person or persons responsible in the organisation for preventing bribes has been negligent in performing that duty.
This means companies are held vicariously liable for the actions of their employees involved in bribery. This principle should encourage businesses to discourage any form of bribery within their organisation.
Are any defences available?
If a business is charged with failure to prevent bribery, it is a defence if it can demonstrate that there were adequate procedures in place designed to prevent employees or agents committing bribery. Token efforts to reduce bribery will not be sufficient. Adequate procedures will include a clear anti-bribery policy and regular staff training on avoiding situations where there is a risk of bribery taking place.
However, this defence is not available if it was the responsibility of a manager or director (or equivalent) to prevent the bribery.
What penalties may be imposed?
Individuals convicted of a bribery offence could face up to 10 years in prison and or an unlimited fine. They may also face confiscation of property under the Proceeds of Crime Act 2002, and disqualification as a director.
As for business organisations convicted of an offence, they could face the following sanctions:
- An unlimited fine – which could be (according to sentencing guidelines) as much as 400% of the value of their gain from the criminal conduct – and more if there are aggravating factors
- Serious crime prevention orders which can mean restrictions or requirements in relation to the financial, property or business dealings of an organisation and monitoring
- Being debarred from tendering for public contracts