The long awaited Bribery Act 2010 comes into force in July 2011, bringing about a reform of the current anti-bribery regime.
Guidance about procedures to prevent bribery
The Act introduces several new corporate offences, including the offence of failing to prevent bribery, which has caused concern. It is a strict liability offence applying to all commercial organisations in the UK and carries a penalty of an unlimited fine. It is a defence to prove that adequate procedures are in place to prevent bribery.
Until now it has been unclear what constitutes 'adequate procedures', but on 30 March 2011, the Ministry of Justice published guidance about procedures which can be put into place to prevent bribery. The guidance sets out six principles to give organisations a starting point for planning anti-bribery procedures. The guidance recommends undertaking a risk assessment to establish the risks of bribery faced by the organisation and implementing procedures which are proportionate to those risks. The risks faced will vary according to the size of the organisation, the sector in which it operates and the nature of its business partners.
It is now up to commercial organisations to review their businesses and establish whether their anti-bribery procedures are adequate and compliant with the Act. If they are not, they should seek to implement adequate procedures without delay.
Prosecution guidance published by the Serious Fraud Office
On 30 March 2011, the Serious Fraud Office also published prosecution guidance, setting out its approach to prosecutions under the Act. The guidance considers each of the relevant sections of the Act in turn, giving examples of the evidential considerations which might apply and the public interest factors which will be relevant in relation to each of the offences. The guidance will assist organisations to establish how vulnerable they are to prosecution under the Act.