The Bribery Act 2010 came into force on 1st July 2011. It principally created 4 new offences as follows:-
1. Paying a bribe
It is an offence to offer, promise or give a financial or other advantage for the purpose of bringing an improper performance of a function or activity.
2. Receiving a bribe
It is also an offence to request, agree to or receive a financial or other advantage for the purpose of bringing about an improper performance of a function or activity or to request, agree to or receive a reward for having done so.
3. Bribing a foreign public official
It is an offence to offer, promise or give a financial or other advantage to a foreign public official where such advantage is not permitted under the written law applicable to that foreign official, and it is done with the intention that this would influence the foreign official in the performance of his duties as a public official and must intend to secure business or to obtain a business advantage.
4. The corporate offence of failing to prevent bribery
A business commits an offence if a person associated with it bribes another person with an intention of obtaining or retaining either business or a business advantage for that organisation.
It is a defence if the business can show that they have put in place “adequate procedures” to prevent bribery.
In November 2011 the first prosecution under the Bribery Act 2010 took place when a Court Clerk (Munir Yakub Patel) was jailed for three years for bribery. He admitted receiving £500 in exchange for “getting rid” of the details of a traffic summons.
The sentence clearly showed the intention of the act to be a powerful deterrent to bribery, for both individuals and businesses.
In July 2012 a report by Ernst & Young suggested businesses may have been getting complacent about the risks of prosecution under the Bribery Act as no corporate prosecution had commenced. However the Serious Fraud Office in October 2012 made an announcement that it was radically changing its guidance on prosecution, suggesting that it would be more inclined to bring prosecutions against businesses than previously had been the case. Hence we believe that it is essential that you have proper procedures against bribery in place now, especially as for example corporate hospitality could amount to a bribe unless it has a legitimate business aim, is reasonable, proportionate and appropriate in the circumstances.
What does your business need to do to avoid the risk of a prosecution?
If your business does not have “adequate procedures” in place, then it faces the risk of unlimited fines if it fails to prevent bribery. What will be considered as adequate will depend upon what is proportionate given the facts and circumstances of the business and the bribery risks that it faces.
At Maples we can advise you on how to ensure that your existing procedures (if any) can be adjusted (if required) to maintain a statutory defence for your business against bribery, or if you have no procedures we can draft a procedure that is bespoke to your business.
Daven Naghen, part of our Litigation Team, says “It is absolutely essential for every business, no matter how small or large or whatever its line of business, to have an anti-bribery procedure in place and then not only follow it but monitor and review it regularly to ensure that the business does not end up facing untold damage to its reputation and an unlimited fine causing financial ruin.
We can sort out your procedures and advise you as to implementation, monitoring and review in such a manner that is most suitable to your business.”
If you require guidance on the Bribery Act 2010 then please contact Daven on 01775 722261 or email firstname.lastname@example.org or write to Daven at 23 New Road, Spalding, Lincolnshire PE11 1DH.