After several years of criticism over lax enforcement
of existing anticorruption laws by the Organisation for
Economic Co-operation and Development (OECD), and more
than a decade of failed efforts to pass similar
legislation, the Bribery Act 2010 (The Bribery Act)
finally received Royal Assent on 8 April 2010.
The Act will give the UK a strong platform upon which
to build new anticorruption enforcement efforts, and
will make it easier for the Serious Fraud Office (SFO)
to prosecute commercial organisations. The purpose of
the Bribery Act is to modernise existing anticorruption
law by creating a single piece of legislation criminalising bribery (and other associated corrupt
activities), and by repealing what is generally accepted
to be outdated legislation.
It is now anticipated that the Bribery Act will come
into force after the General Election on 6 May 2010, on
a commencement date chosen by the newly appointed
Minister of Justice Ken Clarke.
The general structure of the Bribery Act’s
anticorruption regime is familiar to anyone who has
experience dealing with the U.S. Foreign Corrupt
Practices Act 1977 (FCPA), including penalties for
payments or offers of illicit inducements to foreign
government officials, and for failure to have adequate
controls in place to detect and remediate corruption
issues as they arise. The Bribery Act has greater impact
than the FCPA, in that it covers corruption situations
involving the public and private sectors, and because it
prohibits facilitation payments.
Key Offences under the Bribery Act
- Offering a bribe.
- Taking a bribe.
- Bribing a foreign official.
- Strict corporate liability for failing to
The most noteworthy feature of the Bribery Act for
businesses, is the creation of the strict corporate
liability offence for failure by a commercial
organisation to prevent bribery being committed on its
behalf. However, there is a defence for the commercial
organisation if it can prove it has put adequate systems
in place to prevent bribery. The Bribery Act will
penalise companies that do business with the UK and
whose employees engage in bribery, even if committed
Under the Bribery Act, the maximum penalty for
individuals is 10 years’ imprisonment and/or a fine, and
the maximum penalty for a corporate entity is an
unlimited fine. Conviction under the Bribery Act could
lead to collateral consequences: a director of a company
could be disqualified, and a convicted company could be
debarred from competing to tender for public contracts
under Part 4 of the Public Contracts Regulations 2006.
Also pursuant to the agreement entered into by the World
Bank and leading banks, companies and individuals will
be debarred if found guilty of bribery.
Commercial organisations doing business with the UK
(whether British or foreign) should therefore start
reviewing their internal compliance procedures as a
matter of urgency to avoid triggering possible criminal
liability when the Act comes into force.
A more detailed review of the Bribery Act 2010 is