The Bribery Act 2010 (the "Act") is due to come into
force in April 2011. The Act will see the introduction of the new "corporate
offence" of having failed to prevent bribery from occurring. The only defence
to this strict liability offence will be to demonstrate that the company in
question has in place an effective and
fully implemented anti-corruption policy and procedures.
In order to assist companies prepare for that moment, the U.K. Government has
published draft guidance on how companies can ensure that their policies and
procedures would be deemed adequate (the "Draft Guidance"). The consultation
period on the Draft Guidance is due to close on 8 November 2010. It is expected
that the final form of the guidance will be published in January 2011. This
Alert seeks to provide an overview of the Draft Guidance, and outlines what
steps companies should be taking between now and April 2011.
The "Corporate Offence" and the "Adequate
The Act provides that commercial organisations may be
criminally liable for failing to prevent bribery (whether offered or received)
by persons providing services to the business, including employees, agents and
subsidiaries (whether domestic or foreign), as well as joint venture partners.
A commercial organization can be caught by this provision if it is a U.K.
company or partnership, or if it is incorporated elsewhere but carries on
business in the U.K., although it does not have to be the U.K.-connected part
of the business that commits the offence for the Act to bite. In practice,
therefore, any multinational group which has some connection with the U.K. is
exposed to potential liability under the Corporate Offence.
As noted above, the Corporate Offence is strict liability
- so claims that any bribery was merely the result of negligence rather than
criminal intent will have no relevance. The only defence is, as set out in the
Act, to demonstrate that the commercial organisation had in place "adequate
procedures designed to prevent the persons associated with the commercial
organization from undertaking such conduct".
click on the Attachment: link at the top of the post to view or download the