The Bribery Act 2010 creates new statutory offences, replacing common law. The most significant change is the introduction of a corporate offence, ‘failure to prevent bribery’ by persons associated with a business. ‘Bribery’ would include the suggestion of a bribe and penalties include an unlimited fine. The UK courts could have jurisdiction if the offence takes place outside the UK but is committed by a person who is closely connected with the UK, such as UK nationals or companies incorporated in the UK.
If a business has ‘adequate procedures’ in place designed to prevent persons associated with it from undertaking conduct which would be regarded as bribery, then the existence of such procedures will be a defence against prosecution.
Although the Bribery Bill received Royal Assent on 8 April 2010, most sections of the Act will only come into force upon order of the Secretary of State made by Statutory Instrument – expected to be by the end of this year although the exact date is unknown. Unfortunately at this moment there are also no guidelines as to what ‘adequate procedures’ are.
The Bribery Act provides the Secretary of State with powers to produce guidance (see section 9 of the Act) on what these might be. The Conservatives, during debate of the bill, have indicated they would create an agency to advise businesses on their practices and would do so if they enter government after the election.
The FSA also has an interest in anti-bribery measures. It may be recalled that the FSA fined AON Ltd £5.25m last year for failings related to maintaining effective systems and controls to counter the risks of bribery and corruption associated with making payments to overseas firms and individuals. The FSA’s key findings to date on the subject, albeit with an insurance broker twist, can be viewed via the link to the FSA webpage.