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Date: 19th April 2010
The new Bribery Act which has just received Royal Assent (8 April) reforms the criminal law to enable courts and prosecutors to respond more effectively to incidents of bribery. The maximum prison term for such offences has been increased to ten years and businesses are to be subject to unlimited fines.
Once the Act comes into force fully, commercial organisations will be at risk of prosecution if they fail to prevent bribery being carried out on their behalf by anyone “associated” with the business. A person can be “associated” whether or not they are an employee. The test will be the relevant circumstances surrounding the relationship rather than its formal description. So, for example, a consultant of a commercial organisation who takes steps to procure an unfair advantage for that business during a tender bidding process could cause the organisation to be prosecuted for bribery. A defence will be to prove that adequate procedures were in place to prevent such conduct.
Lynn Bleakley, director and business defence specialist at leading Midlands firm Cartwright King Solicitors advises: “Adequate procedures” have not yet been defined by the Act, but these should become clearer when the Secretary of State publishes the required guidelines. A minimum we can expect is that companies should carry out risk based assessments, closely monitor those associated with them, give training to employees and carry out relevant audits. Contracts with “associated” individuals and businesses should include anti-bribery and corruption provisions, to ensure everyone is clear about their responsibilities.”
The new legislation will also make it easier for prosecutions to be brought where the alleged acts of bribery have occurred outside the UK, if the individual or business so acting has a close connection with this country.
Lynn Bleakley adds: “Given the width of the new legislation, individuals and businesses must take steps to safeguard against allegations of bribery. If, despite such steps, they find themselves subject to an investigation, it is essential that expert legal is sought at the earliest stage to provide guidance. This will give the best possible chance of raising a defence as well as limiting fines and avoiding prison.”
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