The United Kingdom's Bribery Act 2010 (text) creates a new offence under section 7 which can be committed by commercial organisations which fail to prevent persons associated with them from bribing another person on their behalf.
An organisation that can prove it has adequate procedures in place to prevent persons associated with it from bribing will have a defence to the section 7 offence.
The new Bribery Act gives a more certain definition of bribery and updates antiquated rules that were difficult to use to obtain prosecutions. The government was under some pressure from the US government to legislate...
The Bribery Act 2010 makes provision about offences relating to bribery which include bribing another person and being bribed. This can take place whilst at work, during the course of doing business or carrying out public duties. All organisations can be liable without adequate policies and procedures in place, and IT managers are expected to ensure that their systems and networks provide enough protection for their organisations.
The Bribery Act 2010 also places a new onus on companies that businesses have expressed concern about. The employer of someone engaged in bribery can be held to account for the first time for those acts, even if the company did not condone or even know about it.
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Corporate Anti-Bribery Policy
Criticism and concerns
Analysts have taken the view that the Bribery Act 2010 should be fairly easy to implement so long as organisations take a 'common sense' approach to what is fair and reasonable across business practices. For example, it is considered all right to take a client to a corporate hospitality event in order to develop an ongoing business relationship. This may become a problem under the Act if the corporate hospitality is offered at a time when a fiercely-competitive contract is about to be signed.
The other major concern is for international companies doing business overseas in cultures where 'hand-outs' are accepted business practice, from the docker to ensure goods are loaded at the dockside, to local officials who assist with red tape. Legal experts recognise that the Act falls short of dealing with the international issue clearly enough.
Why the Bribery Act 2010 is needed
The Government’s spokesman said in Parliament “Bribery is a crime that undercuts competitiveness, derails honest companies and distorts the marketplace.
Those who bribe and those who are bribed, whether in commercial organisations or governmental institutions, are thereby diminished by their actions, such that their legitimacy is called into question and the confidence of consumers and the public is weakened.
Bribery also undermines the societies in which bribes are made."
The Bribery Act 2010:
- provides a more effective legal framework to combat bribery in the public or private sectors:
- replaces the fragmented and complex offences at common law and in the Prevention of Corruption Acts 1889-1916;
- creates two general offences covering the offering, promising or giving of an advantage, and requesting, agreeing to receive or accepting of an advantage;
- creates a discrete offence of bribery of a foreign public official;
- creates a new offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf (it will be a defence if the organisation has adequate procedures in place to prevent bribery);
- require the Secretary of State to publish guidance about procedures that relevant commercial organisations can put in place to prevent bribery on their behalf;
- helps tackle the threat that bribery poses to economic progress and development around the world.
The Bribery Act 2010 reforms the criminal law of bribery and corruption to provide for a new consolidated scheme of bribery offences covering both the UK and abroad. The Bribery Act 2010 repeals the offences at common law and statute (abandoning the agent/principal relationship) and replaces them with three general offences applicable to individuals and corporations:
- Section 1: offering, promising or giving a financial or other advantage (i.e. bribing another person);
- Section 2: requesting, agreeing to receive or accepting a financial or other advantage (i.e. being bribed); and
- Section 6: bribing a foreign public official, for which the only defence is if the briber can show that the recipient was permitted or required to receive the bribe under the written law applicable to the recipient.
- If any one of these three offences is committed abroad, provided that it would have been an offence if it were committed in the UK and it is committed by a person with a “close connection” with the UK, liability will attach.
The draftsmen purposefully have not defined what “a financial or other advantage” is but a bribe is no longer just cash passed under a table.
Section 7 of the Bribery Act 2010 imposes a strict liability offence for failing to prevent bribery, irrespective of where the offending acts have taken place. This applies to companies and partnerships incorporated or formed in the UK as well as “any other body corporate (wherever incorporated) which carries on a business, or part of a business, in any part of the [UK]”.
The only defence that can be raised is if the corporate can show that it had in place “adequate procedures” designed to prevent bribery. Guidance on what these adequate procedures might be was published by the Ministry of Justice on 30 March 2011. This sets out six generic principles to assist commercial organisations in considering how best to respond to the Bribery Act 2010 in a risk-based and proportionate manner.
Bribery Act 2010 (text)