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 postponed it again while non-statutory Guidance was finalised.
The Act eventually came into force on 1 July 2011.
It abolishes the old common law offences of “bribery and embracery” (in Scotland “bribery and accepting a bribe”). It replaces them with new criminal offences in England & Wales, Scotland and Northern Ireland in connection with offering or receiving bribes. 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 to acts done abroad as well as in the UK and covers both the public and private sectors.
The Act provides for a maximum jail sentence of 10 years. Importantly, it 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 Official Guidance to the Act (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 Start 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”.
The Law Society has issued a Practice Note for solicitors on practical operation of the Act. Unsurprisingly the general tenor of this Practice Note is cautious. For example, notwithstanding the government guidance, it prudently points out that “Gifts and hospitality are often part of the business culture and it can be difficult for staff to know what is appropriate in terms of giving and receiving gifts and hospitality. … The firm should seek to prevent the giving or receiving of gifts, hospitality or paying of expenses if it might influence or be perceived to influence a business decision”. The Law Society’s Practice Note does however go on to suggest that “It is unlikely a small token of appreciation sent to local estate agents at Christmas will engage section 1 of the Act. However, firms should consider carefully the intent behind gifts. They should also ensure that they have a clear policy on gifts and record both the giving and receiving of gifts”.
A template Bribery Policy is available to subcribers here.