Here comes the bribe

Now that the dust has begun to settle, following the implementation of the Bribery Act 2010, we can start to see more clearly the true effects of the legislation, rather than panic at the alarmist comments being made at the time of its introduction.

The Act tidies up the jumble of common law and statutory offences which had previously governed anti-bribery laws. It covers situations of both bribing others and being bribed, linked to the concept of ‘improper performance’, which is fairly widely drafted, but is an objective test based on breach of good faith, impartiality or a position of trust. There does not need to be an intention of corruption, as was previously required, as a necessary ground for the committing of an act of bribery.

More radically, it introduces an offence of failing to prevent bribery for commercial organisations, which, in effect, requires businesses to put in place adequate procedures to prevent bribery. The Act refers to 6 guiding principles of:

  • proportionate anti-bribery procedures which are practical and clear
  • commitment from the top down to create an honest business culture within the organisation
  • informed and regular risk assessments
  • due diligence procedures in high risk areas
  • adequate communication within the organisation
  • constant monitoring and review of procedures

The consequences of a conviction for bribery may be an unlimited fine plus, in the case of individuals, custodial sentences of up to 10 years. Accordingly, it is vital that these internal procedures are put in place as soon as possible. There is no exemption for the making of facilitation payments in the Act, although the accompanying guidelines do stress that individual circumstances will be taken into account where payments have been made.

Importantly, the guidelines make clear that bona fide, reasonable and proportionate hospitality, promotions or other business marketing expenditure will not constitute a criminal act. It is for the prosecution to make the case that any such hospitality is disproportionate and aimed at securing unfair financial or other advantage.

For more detailed information please contact Andrew Fleming on 01473 230033 or emailarf@blockslegal.co.uk

The above is general comment only and individual advice should be taken