The Bribery Act 2010 (the “Bribery Act”) was originally scheduled to come into force in October 2010 and was then delayed until April 2011. However, following the announcement of a last minute ministerial review, Justice Minister Ken Clarke has today announced that the implementation of the Bribery Act will be further delayed pending the outcome of the review.
The Bribery Act is likely to dramatically impact the criminal exposure of corporations that carry on a business in the United Kingdom. For a detailed analysis of the provisions of the Bribery Act, subject to the outcome of the review, please click here and here.
The Bribery Act was to have direct consequences not just for UK companies but for all companies that carry on any part of a business in the UK, as it was to criminalise their corrupt behaviour regardless of the location of bribe or its receipt. The Bribery Act, which addressed the bribery of public officials and private parties alike, created personal criminal liability for senior officers of a company that commits a bribery offence with the consent or the connivance of that senior officer. Significantly, among the Bribery Act's four new bribery offences is the corporate offence of failing to prevent bribery. The only defence to this new strict-liability offence was to be that the company had in place "adequate procedures" for tackling bribery at the time of the conduct.
What elements of a compliance program qualify as "adequate procedures" was and remains unclear. Draft guidance from the Ministry of Justice was published in September 2010 (click here for details) and the final guidance will follow the outcome of the ministerial review. Regardless of what the Ministry of Justice recommends, it is clear that companies will need to take a hard look at their compliance programs to ensure they adequately address the specific corruption risks facing their particular businesses around the world.
Gibson Dunn has extensive experience in evaluating and designing corporate anti-corruption compliance programs. This includes assessing the structure and effectiveness of corporate compliance programs, reviewing reporting mechanisms, internal payment controls, and compliance messaging, and drafting new compliance materials, such as ethics and anti-corruption handbooks.
During the consultation on the Bribery Act that has taken place, Gibson Dunn attorneys have twice met with representatives of the Serious Fraud Office to discuss the practical implementation of the Bribery Act. Please click here for further details.