The Bribery Act 2010 (the Act) is due to come into force in early 2011. It sets out a comprehensive anti-bribery code, introducing new criminal offences for commercial organisations. Companies should now be putting in place anti-bribery and corruption systems and training staff.
It is just over a year since the OFT imposed hefty fi nes for anticompetitive bid rigging. Most construction companies will have reviewed their internal systems, but the Bribery Act means that these should be reconsidered. The Act implements new offences of giving and receiving bribes, bribing a foreign public offi cial and failing to prevent bribery.
The fi rst two offences are deliberately wide in scope, defi ning ‘bribe’ as any “fi nancial or other advantage” which may be offered or accepted with the intention or belief of bringing about an improper performance. The offences can be committed directly, or through a third party, and it does not matter whether the advantage is for the benefi t of the person receiving the bribe, or another.
Any person performing an activity of a public nature, connected with a business, performed in the course of employment or on behalf of a body of persons (whether incorporated or not) will be subject to the Act and must perform the activity in good faith and impartially.
An organisation will have a defence if it can prove that “adequate procedures” exist to prevent the conduct. Failing that, the organisation might be found criminally liable for an act committed by an overseas director, employee or agent of which it had no knowledge. This presents particular risks for organisations operating as part of a global network.
The consequences of failing to put in place adequate protective measures are potentially severe – senior management convicted of a principal offence may be liable for up to 10 years’ imprisonment, a fi ne, or both. If the giving or receiving of a bribe or bribing of a foreign offi cial are committed with collusion from a senior offi cer they will also be guilty of the offence, as well as the corporate entity.
Action you can take now:
- Establish a culture which does not tolerate corruption
- Establish a clear code of conduct for anti-corruption control
- Publicise procedures and protocols internally and externally
- Put in place a programme of staff training
- Establish protocols for accepting gifts and hospitality
- Conduct due diligence on potential business partners
- Establish appropriate hierarchy for decision making process
- Financial controls to minimise the risk of corrupt acts