The Bribery Act 2010 is due to come into force in April 2011.
It will introduce changes in the law that could significantly impact on the conduct of businesses both in the UK and abroad by extending the crime of bribery to cover all private sector transactions. In addition, the Act creates a list of new offences the most notable of which is the new strict liability offence of failing to prevent bribery. An organisation will only have a defence to this offence if it can show it had ‘adequate procedures’ in place to prevent bribery. It is therefore recommended that employers start to prepare for the changes now.
The new offences created by the Act are:
- A general offence covering offering, promising or giving a bribe.
- A general offence covering requesting, agreeing to receive or accepting a bribe.
- A distinct offence of bribing a foreign public official to obtain or retain business.
- A new strict liability offence for commercial organisations where they fail to prevent bribery by those acting on their behalf.
The offences are broadly defined. For example, a commercial organisation commits an offence if a person associated with it bribes another person for that organisation's benefit. A person is ‘associated’ with a commercial organisation if they perform services for or on behalf of the organisation, regardless of the capacity in which they do so. This could therefore cover a company’s agents, employees, subsidiaries, intermediaries, joint venture partners and suppliers.
Employers should also be aware of the risk that corporate hospitality, such as customer or supplier entertainment, and the giving or receiving of gifts, might also be seen as bribery. Excessively lavish hospitality or gifts should therefore be avoided.
Each of these offences carries criminal penalties for individuals and organisations. Fines are unlimited for both and individuals also face a maximum prison sentence of ten years. A director convicted of a bribery offence is likely to be disqualified from holding a directorship for up to 15 years.