Offences under the Bribery Act 2010
The Bribery Act 2010 is not retrospective in effect. Therefore, the previous anti-bribery regime will continue to apply where any act or omission forming part of a bribery offence took place before 1 July 2011. For acts and omissions on or after 1 July 2011, the Bribery Act 2010 will apply. The Bribery Act contains general offences, a discrete offence of bribing a foreign public official and a corporate offence of failing to prevent bribery.
Under sections 1 and 2 of the Act, it is an offence to promise, offer or give (active bribery) or request, agree to receive or accept (passive bribery) an advantage (financial or otherwise), in circumstances involving the improper performance of a relevant function or activity.
For the purpose of these offences:
“relevant function or activity” means a public or business activity, which a reasonable person in the UK would expect to be performed in good faith, impartially, or in a particular way by virtue of the fact that the person performing it is in a position of trust; and
“improper performance” means breach of that expectation.
These offences will capture both public and private sector bribery.
Bribing a foreign public official
Under section 6 of the Act, it is an offence to promise, offer or give an advantage (financial or otherwise) to a foreign public official (“FPO”) intending to (1) influence the FPO in his capacity as such; and (2) obtain/retain business or a business advantage.
It is not an offence where the FPO is permitted or required by the written law of the FPO to be so influenced – custom or tolerance will not suffice.
Under section 7 of the Act, a corporate is guilty of an offence where an active general offence or the FPO offence is committed anywhere in the world by someone performing services on the corporate’s behalf in any capacity intending to obtain/retain business or a business advantage for the corporate.
It is a defence for the corporate to show that it had “adequate procedures” in place designed to prevent such bribery.
The penalties under the Act are severe – there is a maximum penalty of 10 years’ imprisonment and/or an unlimited fine for individuals. Corporates face an unlimited fine (including in respect of the corporate offence).
In addition, where a person (including a corporate) has been convicted of an offence, they face automatic and perpetual debarment from tendering for EU public contracts (although the Government has indicated that debarment for corporates will be discretionary where the offence in question is the corporate offence).
There are other possible serious financial (as well as reputational) consequences of being found guilty of an offence under the Act, including confiscation under proceeds of crime legislation (which seeks to take away the entire benefit obtained by the wrongdoer as a result of the offence), the requirement to appoint an external monitor to review and ensure compliance with policies and controls and/or to pay substantial costs associated with the prosecution.