News Update
Bribery Act 2010

31 Aug 2010

On 21 July 2010 the Secretary of State for Justice, Kenneth Clarke, delayed implementation of the Bribery Act 2010 from October 2010 until April 2011. A short consultation process will now take place in September to develop safeguarding guidance for affected organisations.

Strict Liability Offence

The Act is broad reaching treating both public and private organisations alike in its introduction of a new strict liability criminal offence. NHS Trusts, social enterprises as well as private sector organisations will all be potentially liable for an unlimited fine should they fail to prevent employees or associates bribing others in the business environment.

Furthermore, should an organisation or individual have a 'close connection with the UK', liability will extend to acts or omissions done outside the UK. 

Defence

However, affected organisations will have a defence if 'adequate procedures' can be demonstrated to safeguard against bribery. 

The Act requires the government to publish guidance in order to assist affected organisations in establishing such adequate safeguards. The short consultation in September 2010 will begin the ball rolling with resulting guidance to be published in the New Year. 

Senior Officer Offence

In addition to the new corporate offence, should a ‘senior officer’ of an organisation, which will include secretaries as well as managers, consent to or connive with the corporate bribery offence they will be personally liable to up to ten years in prison and an unlimited fine.

Elements of the Offences

The Act repeals past legislation on bribery while creating offences relating to:

• being bribed
• bribing another
• bribing a foreign official
• corporations failing to prevent bribery

Dishonesty need not be proved but rather all of the offences rely on whether a person intended to induce improper conduct (in breach of a relevant expectation, e.g. good faith) of a relevant activity or function.

Measures to Take

Organisations, whether public or private, are advised to contribute to the consultation by visiting the Ministry of Justice’s website in September 2010. It is recommended that organisations should keep abreast of developments most notably because of the short run in time from the guidance being published in the New Year until the Act’s implementation in April 2011. 

In addition to contributing to the consultation, we advise that affected organisations should review systems in place, educate staff and lay the foundations for revised safeguarding procedures following the publication of the guidance.

Hempsons can assist in all areas from consultation contributions, to running workshops, advising on safeguarding procedures and keeping organisations up-to-date on any revisions to the guidance on implementation. 

The risk of an unlimited fine to both organisations and individuals not to mention 10 years imprisonment if consenting to, conniving to, or actively partaking in bribery, requires organisations across all sectors to address the serious implications of the Bribery Act 2010 as soon as possible.