The Bribery Act 2010 is the UK based law which strengthens bribery and corruption legislation, in response to the increasing rate of bribery offences. The act effectively updates the bribery offences which an individual or an organisation can be found guilty of. Subsequently, the act states the penalties which will be administered against an individual or organisation for committing a bribery offence. Compliance with the Bribery Act 2010 is of utmost importance if an individual or organisation wants to avoid the severity of unlimited fines and unlimited prison sentences.
Why was the Bribery Act 2010 introduced?
The Organisation of Economic Co-Operation and Development (OECD) criticised the UK from 2007, claiming that the UK's treatment of bribery and corruption has been weak and ineffective. The OECD was effectively comparing the UK's previous legislation, which was the Prevention of Corruption Act 1916, against the more robust US Foreign and Corrupt Practices Act (FCPA). The OECD's Working Group on Bribery conducted a 2007 report which criticised the UK's failure to align the anti-bribery laws with international obligations.
The Prevention of Corruption Act 1916 was regarded by the Secretary of State for Justice in 2009, as old and anachronistic. Therefore, it was widely agreed that a new legislative force was needed.
The reforms introduced in the Bribery Act 2010:
The act explicitly states the bribery offences as follows:
1) The action of an individual bribing another individual (for example, through money), and in return an individual accepting a bribe.
2) Bribing a foreign public official is forbidden, this is particularly new to this 2010 act.
3) The failure of a corporation to prevent a bribe which has taken place through their contractual counterparties. This exposes that the corporation did not have sufficient anti-bribery and corruption procedures. Again, this is specific to the 2010 Bribery Act as it establishes company liability for corrupt actions committed by their employees or individuals who work on behalf of the company.
If an organisation has implemented anti-bribery and corruption procedures, then they have effectively complied with the "adequate procedures" section of the Bribery Act 2010. The Bribery Act 2010 stresses the importance of adequate procedures, as it demonstrates that an organisation has attempted to prevent corrupt activities.
Adequate procedures include:
2) Top-level commitment
3) Risk assessment
4) Due diligence
6) Monitoring and review
Penalties for bribery offences:
The penalties administered for a bribery offence was decided through the co-operation of the UK Serious Fraud Office (SFO) and the UK Crown Prosecution Service.
The penalties include:
- A maximum of 10 years imprisonment: This does not apply to organisations.
- An unlimited fine: As expected, the fine imposed upon an organisation which has failed to prevent a bribery offence occurring within their environment, will be a larger sum than the fine imposed upon an individual convicted of a bribery offence.
- Confiscation of property: This is enabled through the Proceeds of Crime Act 2002, which states the confiscation or civil recovery of property achieved through a crime can be taken.
- Disqualification of Directors: The Company Directors Disqualification Act 1986 states that company directors can be disqualified for certain cases of misconduct, such as bribery.
What has been the reaction to the Bribery Act 2010?
The Confederation of British Industry (CBI), which speaks on behalf of 190,000 businesses, has criticised the Bribery Act 2010 as putting British business at a disadvantage, due to the act criminalising certain behaviour which is able to exist upon the global market legally. Some UK businesses expressed reservations over the Bribery Act 2010 through referencing the corporate criminal offence of "failing to prevent a bribe by an associated person." A corporation is only protected against this clause if they have implemented adequate procedures, which have been regarded as excessive by some organisations.
Although it seemed initially daunting, the Ministry of Justice has published guidance on the act to settle the grievances of organisation and individuals. The Bribery Act 2010 has introduced some complex procedures which were not previously exercised. However, if an organisation wants to achieve a fair and ethical work environment, then they should comply with the Bribery Act 2010 through sound education and training.