Businesses beware the Bribery Act

Introduction

The Bribery Act 2010, which came into force on 1st July 2011, heralded a significant change to UK bribery law. Despite this, many local businesses remain unaware of the implications of the legislation, or even its existence.

The Act is aimed at preventing business profiting from bribery or ‘backhanders’. It is of particular importance to businesses, since a commercial organisation may now be criminally liable for failing to prevent bribery which is committed on its behalf.

General offences

Under the Act, it remains an offence to offer, promise or give a bribe, or to request, agree to receive or accept a bribe. The offences at sections 1 and 2 are punishable by up to 10 years in prison.

Businesses

Two further offences in the Act are specifically aimed at preventing commercial bribery. Section 6 creates a discreet offence of bribing a foreign public official, designed to prevent the influence of decision-making in publicly funded business opportunities.

Under section 7, a firm may now be guilty of an offence, punishable by an unlimited fine, if it fails to prevent bribery committed on its behalf. The person giving the bribe does not have to be an employee. The scope extends to anyone capable of committing bribery on the firm’s behalf, including agents and contractors, but it must intend to secure an advantage for the organisation.

Organisations with overseas and public contracts should take extra care, particularly in countries where bribery or corruption is commonplace. There is no requirement that the person committing bribery on the firm’s behalf has a connection with the UK and local custom will be largely ignored.

Common law

The new offence does not affect the principle that an organisation may be directly liable for an offence under section 1 or 2 where bribery was committed by someone who was the ‘directing mind’ of the organisation, such as a partner or director.

Personal liability

Under section 14, ‘senior officers’ in an organisation (partners, directors etc.) may find themselves with a criminal record if they are complicit in an offence committed by the firm.

Corporate hospitality

The government recognises that hospitality and promotional expenditure is an important part of business. The Act is not intended to prevent firms getting to know their clients by, for instance, taking them to dinner or sporting events. Thus, reasonable, proportionate hospitality will be largely unaffected.

Defence

The legislation is not aimed at penalising generally well-run firms for isolated incidents. So, a full defence is available where an organisation can show that it had adequate procedures in place.  For instance, a firm might consider the following:

  • Conducting a bribery risk assessment;
  • Issuing a policy statement committing it to reasonable, transparent hospitality;
  • Staff training, including guidance on hospitality and promotional expenditure;
  • Monitoring and reviewing its procedures and contracts of employment;

Conclusion

The law does not require unduly expensive or onerous procedures for legitimate businesses. However, firms should educate staff and adopt measures proportionate to the risks they face.

Reasonable, proportionate hospitality will continue, but recipients should not be given the impression that they are obliged to provide work in return.

If unsure, firms should contact Winston Solicitors LLP, who are happy to advise and assist. Call on: 0113 320 5000

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