Bribery Act 2010

Summary

• The Bribery Act repeals outdated and piecemeal legislation and makes it easier for agencies such as the Serious Fraud Office to prosecute bribery and corruption offences.
• The Bribery Act is similar in many respects to the US Foreign Corrupt Practices Act of 1977 but is generally considered broader and more robust than the US law.
• The Bribery Act creates 4 new bribery offences:
  
  • making a bribe - the promise or giving of a financial or other advantage with the intention of inducing or rewarding the improper performance of a relevant function or activity. It does not matter whether the person given the bribe is the same person who will perform the function or activity concerned
  • accepting a bribe - the receipt or acceptance of a financial or other advantage for the improper performance of a relevant function or activity. It does not matter whether the recipient of the bribe receives it directly or through a third party, or whether it is for the recipient's benefit or not
  • bribing a foreign public official - where a person directly or through a third party offers, promises or gives any financial or other advantage to a Foreign Public Official in attempt to influence them in their capacity as such and to obtain or retain business, or an advantage in the conduct of business
  • failing to prevent bribery - a strict liability corporate offence where a commercial organisation fails to prevent bribery by those performing services on its behalf
• Even if the actions in question take place abroad, they will constitute an offence if the person performing them is a British national, is ordinarily resident in the UK, is a body incorporated in the UK or is a Scottish partnership.
• The corporate offence: employers will be most affected by the new corporate offence. A commercial organisation (i.e. a business or partnership which is either incorporated in the UK or which carries on a business (or part of one) in the UK) will be guilty of bribery where a person associated with the organisation bribes another person intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. Persons ‘associated’ with the organisation could potentially include, amongst others, employees, agents or subsidiaries and sub-contractors. A commercial organisation will have a defence if it can show that it had ‘adequate procedures’ in place to prevent bribery. This defence cannot apply where it has been proved that a senior officer of the organisation has consented to the offence and both the company and the senior officer will be guilty of the offence. This is what is called a strict liability offence: there is no need for a prosecution to prove an employer’s negligence.

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