The Bribery Act that came into force in the UK in July makes ‘failing to prevent bribery’ a criminal offence for commercial organisations. Richard Sallybanks and Shaul Brazil, BCL Burton Copeland, look at procedures that can be put in place to prevent bribery by ‘associated’ persons and to ensure appropriate action is taken.
The Bribery Act that came into force in the UK on 1 July 2011 creates two general offences of bribing another person and being bribed, and a discrete offence of bribery of a foreign public official. In addition, section 7 of the Act introduces for the first time an offence whereby a ‘relevant commercial organisation’ (i.e. one incorporated/formed in the UK or one that is incorporated/formed elsewhere, but carries on business in the UK) is guilty of an offence if a person ‘associated’ with it (such as an employee, agent or joint venture partner) offers, promises or gives a bribe with the intention to obtain or retain business or an advantage in the conduct of business for that organisation.
This last offence is commonly characterised as ‘failing to prevent bribery’ and can only be committed by a company, not an individual. It is also an offence of strict liability, meaning that if bribery is committed on behalf of a company by a person ‘associated” with it, such as an agent, it may give rise to criminal liability for the company (with the risk of an unlimited fine, debarment from public procurement contracts, and reputational damage) notwithstanding that the directors were unaware of the conduct.
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