The Bribery Act 2010 (the Act) will replace and enhance the existing anti-bribery regime in the UK. The Act introduces a number of new offences and penalties for non-compliance include unlimited fines and imprisonment.
Previously expected under the last Government to come into force in October 2010, the latest indication is that the Act will come into force towards the end of 2010 or early 2011.
Categories of offence
Broadly, the Act provides for four categories of offence:
- bribing another person,
- being bribed,
- bribing a foreign public official, and
- the failure of a relevant commercial organisation to prevent bribery by an associated person ("relevant commercial organisation" includes a company or partnership incorporated/ formed in the UK or which carries on business in any part of the UK and "associated person" is defined widely to include employees, agents and subsidiaries).
An offence under the first three categories can be committed by public and private sector entities and by individuals with breaches punishable by unlimited fines and/or up to 10 years' imprisonment in the case of individuals. With the first three categories of offence, further action can also be brought against "senior officers" of a body corporate (such as directors) where it can be demonstrated that the offence took place with their consent or connivance.
Under the fourth category of offence, where a relevant commercial organisation fails to prevent bribery by an associated person it can face an unlimited fine.
Wider consequences of conviction for breach of the anti-bribery rules could include director disqualification and black listing from public procurement contracts.
Wide territorial scope
The territorial scope of the Act is very wide.
The first three categories of offence can be committed either in the UK or outside the UK by a person with a close connection with the UK (the "close connection" concept captures, for example, British citizens/ residents, UK incorporated bodies and Scottish partnerships).
A relevant commercial organisation can be guilty of failing to prevent bribery by an associated person regardless of where the bribe takes place.
Adequate procedures defence
Commercial organisations will have a defence to a charge of failing to prevent bribery by an associated person if they have "adequate procedures" in place to prevent unlawful conduct. Under the Act, the Secretary of State is required to publish guidance on the adequate procedures that commercial organisations can put in place. The Ministry of Justice has indicated that such guidance will be issued around three months before Act comes into force.
Meantime, many public and private sector organisations have already started to review their internal anti-bribery compliance and risk procedures. Particular areas of focus include the use of third parties such as agents, distributors and sub-contractors.
View the Bribery Act 2010 (webpage).