The Bribery Act 2010

Rhodri Davey Partner & Head of Employment Team

The Act

The Bribery Act 2010

An Act to make provision about offences relating to bribery and for connected purposes.

20 Sections

2 Schedules

43 Page guidance

In force 1st July 2011

Bribery – the statutory definition

A financial or other advantage:

Given by A to B

With a view to inducing B or C

• to perform improperly a relevant function or activity, or

• to reward them for such improper performance

Or where the acceptance of the bribe itself constitutes improper performance

(Section 1)

Bribery – the statutory definition

Relevant Function or activity

Public

Business

Course of employment

On behalf of a body (corporate or unincorporated)

May include functions or activities not connected with or performed in the UK

Bribery – the statutory definition

“Improper Performance” means:

A performance or activity performed in breach of a relevant expectation.

A failure to perform the function or activity where there was a breach of a relevant expectation

Bribery – the statutory definition

“Relevant Expectation” means:

What a reasonable person in the UK would expect

Where the performance is not subject to UK law, disregarding any local custom or practice unless permitted or required by the written law applicable in the country or territory concerned.

Bribery – the offences

Giving a Bribe (Section 1)

Bribery – the offences

Giving a bribe

Inducing a person to perform improperly a relevant function or activity

Rewarding a person for the improper performance of such a function or activity

Bribery – the offences

Giving a bribe (cont)

Provided, so far as the person performing the function or activity is concerned, that:

They are expected to perform it in good faith; or

They are expected to perform it impartially; or

They are in a position of trust by virtue of performing it.

Bribery – the offences

Receiving a Bribe (Section 2)

Bribery – the offences

Receiving a Bribe

Requesting/ accepting a financial or other advantage; AND

intending that in consequence a relevant function or activity should be performed improperly; OR

as a reward for such improper performance.

Requesting/ accepting a financial or other advantage where the request, agreement or acceptance itself constitutes the improper performance of a relevant function or activity.

Bribery – the offences

Bribery of a Foreign Public Official (section 6)

Bribery – the offences

Bribery of a Foreign Public Official

Bribing a foreign public official:

with the intention to influence them in their official capacity; and

with a view to obtaining/retaining business or business advantage.

“Foreign public official” includes any individual holding a legislative, administrative or judicial position of any kind or exercises any public function anywhere outside the UK.

Bribery – the offences

Failure to Prevent Bribery (Section 7)

Bribery – the offences

Failure to Prevent Bribery

It is an offence for a relevant commercial organisation to fail to prevent giving or taking of a bribe by a person associated with it.

“Relevant Commercial Organisation” means:

Partnership or incorporated body formed in the UK and carrying on business in the UK or elsewhere;

Partnership or incorporated body, wherever formed, carrying on business in the UK

“Business” includes a trade or profession

Bribery – the offences

Failure to prevent bribery (cont)

“Associated person” includes:-

An employee, worker or agent

A subsidiary

Any other person performing services for or on behalf of another

Where the associated person is an employee, the presumption is that he/she does provide services.

(Section 8)

Bribery – the offences

Failure to prevent bribery (cont)

It is a defence for the organisation to show that they had in place adequate procedures designed to prevent such conduct.

(Section 7)

The Secretary of State must publish Guidance about procedures that may be put in place

(Section 9)

Jurisdiction

British courts have jurisdiction over s. 1, 2 and 6 offences committed in the UK

British courts have jurisdiction over s. 1, 2 and 6 offences committed outside the UK if Defendant has a close connection with the UK

British NationalOrdinarily resident in the UKBody incorporated in the UKScottish partnership

British courts have jurisdiction over s. 7 offences even if the alleged offence took place outside the UK.

Penalties

Maximum penalty (Magistrates Court )

12 months’ imprisonment

fine up to £5,000

an unlimited fine in the case of a partnership or corporation

Maximum penalty (Crown Court)

10 years’ imprisonment

unlimited fine

Maximum penalty; s. 7 offence (Crown Court only)

unlimited fine.

Decision to prosecute

Proceedings under the Act may be instituted in England and Wales only with the consent of:

DPP

Director of the SFO

Director of Revenue and Customs Prosecutions

The Guidance

The Guidance

THE SIX PRINCIPLES

1. Proportionate procedures

2. Top level commitment

3. Risk assessment

4. Due diligence

5. Communication and training

6. Monitoring and review

The Six Principles

1. Proportionate procedures

Size of business

Type of business

Type of persons involved

The Six Principles

2. Top level commitment

“The top level management of a commercial organisation (be it a board of directors, the owners or any equivalent body or person) are committed to

preventing bribery by persons associated with it. They foster a culture within the organisation in which

bribery is never acceptable.”

The Six Principles

3. Risk assessment

“The commercial organisation assesses the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with

it. The assessment is periodic, informed and documented.”

The Six Principles

4. Due diligence

“The commercial organisation applies due diligence procedures, taking a proportionate and risk based approach in respect of persons who perform or will

perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.”

The Six Principles

5. Communication and Training

“The commercial organisation seeks to ensure that its bribery prevention policies and procedures are

embedded and understood throughout the organisation through internal and external communication, including

training, that is proportionate to the risks it faces.”

The Six Principles

6. Monitoring and Review

“The commercial organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and makes improvements where

necessary.”

The Guidance

Providing Hospitality

Reasonable and proportionate hospitality is recognised as an important part of doing business and it is not the intention of the Act to criminalise it.

Standard of reasonable person in UK.

No wish to bring full force of criminal law on well run commercial organisations.

The Guidance

Providing Hospitality

Promotional or other similar business expenditure may constitute bribes, but..

Bona fide hospitality and reasonable and proportionate promotional or other business expenditure is acceptable if it seeks to:

Improve the image of the organisation;

Better present products and services; or

Establish cordial relations.

Bribery – the blush test

1. Assess risks2. Due diligence3. Proportionate measures4. Zero tolerance Message5. Amend existing policies

(disciplinary/whistle blowing/tendering/gifts)6. New corporate hospitality etc. policy7. Amend contracts of employment8. Amend contracts with agents9. Training10. Review (regular and incident based)

Checklist

Thank you