The UK Bribery Act

• Regulation in practice
• Issues to consider
• Opportunities
  

The Bribery Act 2010 will come into force on 1 July 2011. It amends and reforms the UK criminal law and provides a modern legal framework to combat bribery in the UK and internationally.

The Bribery Act 2010, attracted strong cross party support in Parliament and received Royal Assent on 8 April 2010. Section 9 of the Act requires the Government to publish guidance on procedures that commercial organisations can put in place to prevent bribery on their behalf.  
Foreign bribery  has been illegal for many years, with a number of individuals and companies having been convicted under the current law.
The UK is contributing through the OECD Working Group on Bribery International Business Transactions and the UN Convention Against Corruption to increasing global awareness, enforcement and investigation of foreign bribery.

Regulation in practice: mode and scope

The Bribery Act creates the following offences:

1. Active bribery: promising or giving a financial or other advantage.
2. Passive bribery: agreeing to receive or accepting a financial or other advantage.
3. Bribery of foreign public officials.
4. The failure of commercial organisations to prevent bribery by an associated person (corporate offence).

Penalty

Under the current law imprisonment for up to seven years with unlimited fine will increase under the Bribery Act to a maximum of 10 years imprisonment.

Jurisdiction

The scope of the law is extra-territorial. Under the Bribery Act, a relevant person or company can be prosecuted for the above crimes if the crimes are committed abroad.

Application

The Bribery Act applies to UK citizens, residents and companies established under UK law. In addition, non-UK companies can be held liable for a failure to prevent bribery if they do business in the UK.

Liability

Companies can be liable for bribery committed for their benefit by their employees or other associated persons.

Culpability

A company or corporate entity is culpable for board-level complicity in bribery, including bribery through intermediaries. There is also personal liability for senior company officers that turn a blind eye to such board-level bribery.

In addition, a company or corporate entity is culpable for bribes given to a third party with the intention of obtaining or retaining business for the organisation or obtaining or retaining an advantage useful to the conduct of the business by their employees and associated persons, even if they had no knowledge of those actions. The company can invoke in its defence that it ‘had in place adequate procedures designed to prevent persons associated [with the company] from undertaking such conduct’.

Issues to consider

If your company is planning to do business in DRC make use of the Ministry of Justice guidance and consider the tools available on the Business Anti-Corruption Portal before you go.  

Opportunities

Bribery has no place in British business, at home or abroad. This new robust law reflects the UK’s role in the fight against bribery and paves the way for competitive but fair practice. Over time it will have a positive impact on the prospects of UK businesses through enhanced reputation for ethical standards, reduced costs and an international level-playing field.