Although discussion on the Bribery Act 2010 has centred mainly on the private sector, it does apply, albeit on a more limited basis to public organisations and bodies.
So far there has been just a single conviction under the Act since it came into effect on 1 July last year – an English court clerk was successfully prosecuted for accepting bribes in returning for altering the court database recording road traffic penalties – and received a 6-year term of imprisonment (reduced on appeal to 4 years). Even so, there is no room for complacency. It is certainly just a matter of time until more prosecutions begin to emerge. The court clerk was, of course, a public sector employee, and the case demonstrates that even fairly low level corruption in the public sector will be dealt with robustly by the courts.
More generally, there is some evidence that the economic downturn may be driving complacency and an increased tolerance of unethical behaviour. A recent FSA review of anti-bribery systems in investment banks for example, established that some of the banks visited had failed to conduct adequate risk assessments, there were issues around dealings with third parties and, for some, management information was so poor that effective oversight couldn’t take place. Complacency, whether in the public or private sector, is both misguided and short-sighted given the significant penalties bribery offences attract, and the reputational damage that follows any conviction.
Under the Act, there are three core offences that apply to all persons including bodies in the public sector: bribing an individual; bribing a foreign public official and being bribed. The corporate offence of failing to prevent bribery applies to commercial organisations only, and is unlikely to apply to most public sector bodies, as commercial organisations under the Act must be incorporated and "carry on a business". That said, there will be bodies within the public sector that fall within the definition, and these organisations will need to ensure that they comply fully with the Act. Given that all individuals are directly affected by the core offences, and public sector bodies contract direct with private sector providers, many public sector bodies will want to ensure compliance with the provisions of the Act as a matter of best practice.
The Act has a very wide territorial reach; the core bribery offences can take place anywhere in the world where there is a "close connection" between the person committing the offence and the UK. Similarly, the activities constituting a failure to prevent bribery - the corporate offence within the Act - can take place anywhere in the world, and the offence applies to non-UK commercial organisations as long as they carry on all or part of their business in the UK.
The Act effectively requires commercial organisations – and those bodies within the public sector that fall under the definition in the Act - to review and assess their particular bribery risks and ensure that they have adequate procedures to deal with those risks. This is because the Act provides that it is a defence to the corporate offence to prove that the organisations had such adequate procedures in place. Whilst this incentive only applies to commercial organisations under the Act, the adoption of adequate anti-bribery procedures certainly constitutes best practice, and should allow public sector bodies to identify areas of risk, poor working methods and possibly criminality.
If adequate procedures are put in place, the foundation of that is the risk assessment. However, it is important that any assessment of risk is current and reflective of the organisation as it evolves, and this means having mechanisms in place to ensure that risk is re-assessed on an on-going basis. The challenge to all organisations lies in identifying accurately, on an ongoing basis, the risks it faces.
The uncovering of any corruption or bribery within a public sector body damages its reputation, and in times of constrained budgets corruption that either diminishes public funds, or means best value is not obtained, will be the subject of particular public criticism. That in itself is a powerful reason why the public sector should consider adopting appropriate anti-corruption and bribery procedures in line with best practice under the Act.