Howzat for Business Responsibilities?! The Bribery Act 2010
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There can be no doubt that corruption and bribery are bad business practices, that to engage in such practices is illegal and those who do engage in such illegal practices can (even before the new act comes into force) expect to suffer the retribution of the criminal law. Little will change in this regard when the new act comes into force.
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However, the Bribery Act creates a new strict liability offence for businesses of failing to prevent bribery. Under section 7, a “commercial organisation” commits an offence if an "associated person", bribes another intending to obtain some advantage for the commercial organisation. The effect is that businesses can be prosecuted if their employees, agents or even joint-venture partners give bribes, even though this was done without their knowledge or approval. Hospitality, gifts of football tickets etc may count as a bribe. It will be a defence for the business to prove that it had in place "adequate procedures" designed to prevent bribery.
The importance of ensuring that the sales force is aware of their responsibilities and that adequate procedures are put in place to prevent bribery and that those procedures are implemented rigorously cannot be understated, particular where business is carried on in foreign lands where bribery and corruption may the normal way of business life. It does not matter that the offence was committed overseas.
When the Bribery Act 2010 comes into force, the consequences of such actions will fall on the businesses involved even though the directors and principals of such business may not have been aware of what was occurring on the ground.
Some tips
- Assess the appropriateness of corporate hospitality and gifts.
- Train sales staff, agents and anyone else who may have the ability to negotiate contracts on behalf of the business
- Have robust and adequate procedures in place to prevent bribery and enforce those procedures
John Abbott is Senior Litigation partner at Silverman Sherliker, and can be contacted on +44 (0)20 7749 2700 or jca@silvermansherliker.co.uk.
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