Articles

The Bribery Bill was laid before Parliament by the Secretary of State for Justice in March 2009. It is presently at the Committee Stage of the House of Commons, which is due to conclude on 25 March 2010.  The Bill is unlikely to be dependent upon the outcome of the forthcoming election and the expectation is that it will be enacted before 6 May 2010.

Once enacted, the Bill will create two principal criminal offences:

•         "Paying of bribes" i.e. offering, promising or giving an advantage (financial or other) which is intended to induce or reward improper performance of the function or activity in question; and

•         "Receiving of bribes" i.e. requesting, agreeing to receive or accepting an advantage, provided that the intent of paying the bribe was to bring about improper performance.

What constitutes "improper performance" is an objective question - what a reasonable person in the UK would expect in relation to the performance of the type of function or activity concerned. 

There are also two other criminal offences:

•         "Bribing of foreign public officials" i.e. offering, promising or giving bribes with the intent to influence the recipient in the performance of his/her functions as a public official with a view to obtaining or retaining business or a business advantage.  "Public officials" include governmental officials and those working for international organisations.

•         "Failure of a commercial organisation to prevent bribery" by anyone associated with it and/or performing services for or on behalf of it e.g. the organisation's employees, agents, consultants or subsidiaries.  A "commercial organisation" includes a body incorporated under the law of any part of the UK which carries on business there or elsewhere and a UK partnership, but also includes any other body corporate or partnership wherever incorporated or formed which carries on business in any part of the UK. Therefore, the new Bribery Bill will apply extra-territorially provided that the commercial organisation conducts business in any part of the UK. 

The new corporate criminal offence is one of strict liability and the only defence available to a business is that it had in place "adequate procedures" designed to prevent bribery. The Secretary of State will publish authoritative guidance as to what this means in due course - probably during a short interval between the Bribery Bill receiving Royal Assent and the Bill being formally enacted.

Proceedings can only be instituted by or with the consent of either the DPP or the Director of the Serious Fraud Office or the Director of Revenue and Customs. Penalties include unlimited fines and 12 months' imprisonment punishable on indictment. 

With regard to the corporate offence, it would be advisable, in advance of the publication of the authoritative guidance on "adequate procedures", for employers - particularly those who carry out business in emerging markets - to be considering the following preparatory steps:

-            Drafting/reviewing a clear statement regarding the anti-corruption culture, which is fully and visibly supported at the highest level and explicitly applies to all business partners.

-            Developing/reviewing an anti-bribery code or a code of ethics (which outlines expected standards of behaviour and emphasises individual accountability); and clear rules/policies on gifts, hospitality and facilitation payments, on the vetting/due diligence of outside advisors and third parties and on whistleblowing.

-            Developing/reviewing risk management systems/procedures to counter bribery, which include the proper supervision of all staff and close scrutiny of procurement/sales activities.

-            Ensuring adequate communication of rules/policies (e.g. announcements to works councils or on intranet sites) and training of all employees, consultants etc.

-            Applying appropriate and consistent disciplinary procedures in relation to any breach.