Bribery Act headache for companies

18 January 2012

All businesses and companies within the UK need to take consideration of the new Bribery Act – coming into force in April 2011 – and be aware of the implications that these new regulations may have. The 2010 Act is one of the toughest new bribery laws to come into force in recent years and involves a comprehensive reform of corruption law, one of the most significant being that it enables prosecution to be brought effectively both in the UK and in foreign territory; so a UK national or company may be found guilty of an offence even if no part of that offence is carried out in the UK. The Act itself establishes four offences: (1) Bribing another person; (2) Requesting, accepting or receiving a bribe; (3) Bribing a foreign public official; and (4) Failure by a commercial organization to prevent bribery by a person who provides services to it. For companies, the most important thing to note it the new offence of failure to prevent bribery by a person providing services to it (e.g. employees, agents, consultants … etc.), which is a strict liability offence meaning that there is no need for prosecutors to show that there was any corruptive intent behind the actions. The only defence available to this new corporate offence is for the company to show that it has "adequate procedures" in place to prevent acts of bribery from taking place. The Act does not specifically define what amounts to adequate procedures and how companies can establish that their procedures are in fact adequate, and this has caused a great deal of confusion and debate. However, the government has announced plans to issue guidance on what amounts to adequate procedures in early 2011 before the new law comes into force. As expected the potential penalties for failure to adhere by the new laws are severe; individuals face the possibility of up to 10 years imprisonment, whilst companies could be hit with unlimited fines. Further, the "senior officials" of a company will commit offences under the Act if they conspire or give consent to offences being committed by or on behalf of their company. If companies want to avoid committing an offence under the new law they will have to put in place compliance procedures appropriate and adequate to their own circumstances and area of business. The onus is on organizations to be active now and take the necessary steps to put these procedures in place before the law comes into force; and deals being worked on currently but not struck until after April will be subject to the new laws that come into force. • For additional information please contact: Peter Butterfield of Gepp & Sons. The above is not legal advice; it is intended to provide information of general interest about current legal issues.