The Bribery Act 2010 was passed just over a year ago, on 8 April 2010 as one of the final pieces of legislation enacted by the last Labour government. The incoming coalition government originally intended to bring the Act into force on 1 October 2010 but postponed this until April 2011 – and then again postponed commencement of the Act following a consultation and representations from business until three months after publication of guidance on how the Act should be applied.
That guidance was eventually published by the Ministry of Justice on 30 March and the Act is now due to come into force on 1 July 2011.
The Act extends to England & Wales, Scotland and Northern Ireland. It creates new criminal offences in connection with offering or receiving bribes and it abolishes the old common law offences of “bribery and embracery” (in Scotland “bribery and accepting a bribe”). The new offences are essentially offering a bribe, accepting a bribe, bribing a foreign public official and (importantly in an employment law context) a new corporate offence of failing to prevent bribery. The Act provides for senior officers to be guilty of an offence committed by a body corporate if it was committed with their consent or connivance. It applies both in the UK and abroad and to both the public and private sectors. The Act provides for a maximum jail sentence of 10 years.
Importantly, the Act provides for a full defence if an organisation can show that it had adequate procedures in place to prevent persons associated with it from indulging in the bribery of which it is accused (Bribery Act 2010 s.7(2)).
Whilst not generally concerned with employment law, the Act provides that a commercial organisation will be guilty of an offence if a person associated with it bribes another person intending to obtain or retain a business advantage for the organisation and also provides for senior staff to be personally guilty of an offence in appropriate circumstances.
From a practical point of view, the Guidance (rather longwindedly entitled “Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing”) is of at least as much, if not more, interest than the Act itself. Overall, the Guidance makes it clear that “Adequate bribery prevention procedures ought to be proportionate to the bribery risks that the organisation faces”, and says that it follows that “a very small business may be able to rely heavily on periodic oral briefings to communicate its policies while a large one may need to rely on extensive written communication” (page 21 of the guidance). It is interesting that this Guidance thus envisages that even a very small business should have some more or less formal bribery policy in place and that it must be communicated to staff while the “Quick Start” guide also provided by the Ministry of Justice specifically states that “you do not need to put bribery prevention procedures in place if there is no risk of bribery on your behalf”.
In regard to hospitality, the Quick Guide simply says “Hospitality is not prohibited by the Act”. The full guidance goes into more detail, pointing out:
“By way of illustration, in order to proceed with a case under section 1 based on an allegation that hospitality was intended as a bribe, the prosecution would need to show that the hospitality was intended to induce conduct that amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust. This would be judged by what a reasonable person in the UK thought. So, for example, an invitation to foreign clients to attend a Six Nations match at Twickenham as part of a public relations exercise designed to cement good relations or enhance knowledge in the organisation’s field is extremely unlikely to engage section 1 as there is unlikely to be evidence of an intention to induce improper performance of a relevant function”.