The Bribery Act 2010 has been in force since 1 July 2011. This Act puts the UK at the forefront of anti-corruption legislation and imposes severe penalties including unlimited fines, up to ten years in prison, and a mandatory ban from tendering for public work in the EU.
Here we provide an overview of the law relating to bribery, the main bribery offences including the strict liability offence to prevent corruption, and the principles that can help companies to assess whether they have established adequate anti-corruption procedures.
Our bribery and corruption law specialists have vast experience in this area, working closely with companies to ensure they comply with the law, as well as providing representation for both organisations or executives facing an investigation into allegations of corrupt practices or wanting to self-report an incident to the Serious Fraud Office (SFO).
The Bribery Act 2010
The Bribery Act 2010 was introduced to modernise and update the criminal law on offering or receiving bribes. It is a particularly stringent piece of legislation that introduced a new strict liability offence specific to companies and other commercial organisations of failing to prevent bribery. This places a burden on companies to prove that they have adequate anti-bribery procedures and policies in place if they are to avoid prosecution and hefty penalties.
The Act is also very wide reaching. Any person, whether or not they are a national, can be prosecuted if any act or omission that forms part of a bribery offence takes place in the UK or they have a close connection with the UK.
It also applies to any business or commercial organisation, no matter its size - and the company does not have to be incorporated in the UK. If it carries on a business or part of a business in the UK, it falls within the scope of the Act.
What is Bribery?
Bribery is described as the giving of a financial or other advantage in connection with the improper performance of a relevant function or activity. Bribery is not limited to cash payments, it can also include material gifts or favourable treatment.
The relevant functions or activities that the bribery offences apply to is widely defined. Almost any situation connected to the public, business and professional sectors is covered, whether or not it is carried out in the UK, provided that it meets one or more of the following conditions:
- the function or activity is expected to be performed in good faith;
- the function or activity is expected to be performed impartially;
- the person performing the function or activity is in a position of trust by virtue of performing it.
The Bribery Act sets out two general offences:
- The giving, promising or offering of a bribe - also known as active bribery;
- Agreeing to receive or accept a bribe - also known as passive bribery.
It also contains two further offences specifically directed at commercial bribery:
- Bribery of a foreign public official - this offence does not require the official to carry out their functions improperly, only that they have been improperly influenced;
- Failing to prevent bribery - this is a strict liability offence, committed by a commercial organisation if it fails to prevent bribery and corruption, whether or not it is culpable.
The Obligation to Prevent Bribery
A particularly controversial aspect of the Bribery Act that distinguishes the law of bribery and corruption from other forms of corporate fraud, is the positive obligation it imposes on companies to have anti-corruption procedures in place.
The strict liability offence of failing to prevent bribery is automatically committed by a commercial organisation if someone associated with it, such as an employee, agent or subsidiary, commits a bribery offence. It is irrelevant whether the organisation was aware of the unlawful conduct, and it will face significant fines unless it can show that it had adequate procedures in place.
This is not an area that companies can ignore – a recent KPMG survey concluded that over a third of UK companies had not conducted an anti-bribery and corruption assessment and that seventy-one per cent of businesses felt that there were countries where bribery and corruption is an integral part of business. It is no defence that bribery and corruption is a usual or necessary trading practice. The investigating and prosecuting authorities are committed to taking bribery and corruption seriously, and it is vital that businesses ensure that they have adequate anti-bribery procedures in place.
The government has set out six guiding principles to help companies to assess whether their procedures are sufficient to prove that everything possible has been done to prevent bribery and corruption.
- that procedures are proportionate to the bribery risks it faces and the nature, scale and complexity of its activities;
- that top-level management (directors, owners etc.) commit to prevent bribery and foster a culture of zero-tolerance to corruption;
- to carry out periodic, informed and documented assessments on any potential internal and external risks of bribery;
- to carry out due diligence in respect of associated persons;
- to communicate, and provide training on, anti-bribery and corruption policies and procedures throughout the organisation;
- to monitor and review anti-bribery and corruption policies and procedures.
For advice about whether your policies and procedures are sufficient to avoid criminal liability, please contact us.
Facilitation Payments and Corporate Hospitality
The strong wording of the Bribery Act coupled with the government’s guidance has raised some ambiguities, particularly in regard to the lawfulness of facilitation payments and corporate hospitality. Uncertainty about when these activities will amount to an offence means companies must be careful to ensure that clear policies are in place and that their activities are reasonable, proportionate and in good faith. At Lewis Nedas, our expert bribery and corruption solicitors are some of the best in the field, and ready to offer the advice and assistance needed to interpret and comply with the law.
Bribery and Corruption Investigations
The SFO is the agency responsible for investigating bribery. Should it become aware of any corruption indicators, such as unexplained preferences or private meetings during tendering periods or abnormal payments, it is likely to start an investigation and, if appropriate, prosecute.
Contact our Specialist Bribery & Corruption Solicitors
At Lewis Nedas, we can help navigate the complex legal framework relating to bribery. We have vast experience representing clients engaged with the SFO, and offer specialist legal advice and assistance in relation to compliance, investigations and prosecutions. If you have been approached by the SFO or suspect an incident of corruption has occurred in your organisation
For further information or to speak to one of our top bribery and corruption solicitors please telephone us on 020 7387 2032, complete our online enquiry form, or contact Jeffrey Lewis, Siobhain Egan or Keith Wood.