After a long time of uncertainty and speculation, the Bribery Act 2010 finally became law today, 1 July 2011.
For all businesses operating in the UK, the Bribery Act should be of concern, particularly to senior management, and even the most scrupulous. All business should reconsider their compliance programmes, if they have not done so already.
It may be distasteful to be concerned with the subject, but the Act creates serious risks of criminal liability for individuals (including not only the briber but also managers of the briber) and the business which employs the briber. The new corporate offence of failure to prevent bribery has caused much concern, making it far easier for the prosecutors to attack businesses.
The Act replaces the previous anti-corruption and bribery laws, e.g. the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916 and abolishes the previous common law offences.
The Act goes much further. It is not just a “public sector” concern. It is not just an “international trade” concern.
The Act is intended to “provide a modern and comprehensive scheme of bribery offences to equip prosecutors and courts to deal effectively with bribery at home and abroad.”
The Act has been described as just one part of a broader attempt to improve the UK’s record in this area, which includes new vigour on the part of the Serious Fraud Office, as indicated by recent successful prosecutions.
The Act is a response to long-term pressure from the Organization for Economic Co-Operation and Development for the UK’s lack of clear substantive prohibitions on bribery, and failure to implement comprehensively and enforce its obligations under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
It is an offence under the Act to bribe another person or to allow oneself to be bribed, and specifically it is an offence to bribe foreign public officials. These offences are punishable by an unlimited fine and/or a prison sentence of up to 10 years. The Act also makes failing to prevent bribery an offence punishable by an unlimited fine. The only defence is that the business had in place adequate procedures to prevent bribery; the Ministry of Justice has issued helpful Guidance on what those procedures should reflect.