the bribery act 2010 rhodri daveypartner & head of employment team
TRANSCRIPT
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
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
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
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
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 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.
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