The Bribery Act 2010 results in major changes to UK laws for business and commerce. It has been introduced as a result of pressure to reform the law regarding bribery and corruption in the UK as the current law is ineffective and not suitable for the global economy. The Act has now received Royal Assent and is expected to come into force in stages between June and October 2010.
The legislation covers a general bribery offence and a specific offence relating to the bribery of foreign public officials. The Act also introduces a new crime of "failure to prevent" bribery which means that commercial organisations unable to demonstrate that they have implemented "adequate procedures" to prevent corrupt practices within their organisation or by third parties on their behalf, could be exposed to unlimited fines as well as other consequences, such as prevention from tendering for government business.
The offences of bribing another person, being bribed and bribing a foreign public official are punishable either by an unlimited fine, imprisonment of up to 10 years or both.
The new corporate offence of failure to prevent bribery is punishable by an unlimited fine.
A defence to the "failure to prevent" offence, exists if it can be shown that "adequate procedures" were in place. This defence cannot apply where it has been proved that a senior officer of the organisation has consented to the offence and both the company and the senior officer will be guilty of the offence. The Government will publish non-statutory guidance regarding "adequate procedures" to assist compliance. It is anticipated that this will form a set of principles rather than an in depth guidance material. This is now awaited.
The only other defences to any other bribery offence is where a person charged with a bribery offence can prove that the conduct was necessary for the proper exercise of any function of an intelligence service or the armed forces when engaged in active service; or where the bribery was specifically authorised by some written law.
International enforcement agencies such as the Serious Fraud Office are collaborating on cross border cases, increasing the chance of detection of bribery and successful prosecution.
Companies will need to review their existing procedures, processes, controls, governance and culture, their risk profile and anti-bribery programmes.