After 104 years, Britain has finally reformed the law on bribery. The Bribery Act 2010 came into force on 1 July 2011. Under the act bribery is defined as “giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so”. One of the criticisms of the act has been centred on this definition; it is largely being seen as too wide and largely vague.
The new Bribery Act 2010 introduces four new categories of offence, these are:
- Offering, promising or giving a bribe to another person (section 1)
- Requesting, agreeing to receive or accepting a bribe from another person (section
- Bribing a foreign public official (section 6)
- Failing to prevent bribery (a corporate offence) (section 7).
The offences under section 1 and 2 of the Bribery Act 2010 are known as general offences, these offences are linked to improper performance of individuals. These offences apply equally to public and private companies and individuals. These two general offences are seen to have been drafted very widely; the government have been keen for this to remain the case and to rely on the discretion of the prosecutor. The government hope that this will bring about a culture of zero tolerance when it comes to bribery and corruption.
The trouble with sections 1 and 2 is that it is conceivable that someone will be in contravention of these rules without being aware. Individuals are put into positions on a daily basis in which their actions may now fall foul of the Bribery Act 2010.
The offence under section 6 of bribing a foreign official covers only the giving or offering of a bribe and not the acceptance. The guidance on this section stresses that this rule is in place to stop businesses and individuals from attempting to influence foreign officials and trying to obtain a business advantage.
A company or an individual can be liable for an offence under sections 1,2 and 6 if the act they are being accused of takes place in the UK, or takes place outside of the UK, if the individuals concerned have a certain connection to the UK. For a company to be prosecuted for an offence under sections 1, 2 or 6 under the Bribery Act 2010, the offence must have been committed by a person who has a certain standing within the company and has the power to make decisions on behalf of the company itself. Historically it has proven very difficult to prove this in relation to companies, and many commentators are not expecting this to change in relation to prosecution under the Bribery Act 2010.
The corporate offence under section 7 is the section to which most companies will be the most concerned. A company will commit the corporate offence if an associated person performing services on its behalf, not even necessarily an employee, bribes another person to obtain a business advantage. There is only one defence available to this section, which is that relevant procedures were put in place to safeguard against such a thing. If the prosecution can show that a bribe was made, the burden of proof will be on the company to prove its innocence in this regard.
The penalty for individuals who are found to be in breach of section 1, 2 or 6 of the Bribery Act 2010 is a conviction of up to ten years imprisonment, an unlimited fine, or both. If a company is found to be in breach of these sections they will be liable to an unlimited fine. The corporate offence under section 7 of the Act also carries with it an unlimited fine.
Further punishments for companies that fall foul of section 7 of the Act will include disbarment from public procurement under the UK’s implementation of the EU procurement Directive. Companies may also be liable to confiscation orders under the Proceeds of Crime Act 2002. A director who is convicted under the act may suffer disqualification under the Company Directors Disqualification Act 1986.
The first person to be charged under the Bribery Act 2010 came in August 2011 when Munir Yakub Patel was charged under section 2 of the Act for allegedly accepting £500 for offering to fix a motoring offence whilst he was employed as a magistrate’s court clerk at Redbridge magistrates court.
Advice on compliance with the Bribery Act may involve aspects of commercial law, litigation and employment law. For more advice on the Bribery Act or any legal problems arising, please get in contact with Darlingtons, the authors of this article.