Corruption offences have been brought against individuals for a long time now but the new Bribery Act 2010 will create a new criminal offence that can include corporations. The expectation is that the Serious Fraud Office (SFO) will pursue these offences vigorously when the Act finally comes into force in July 2011.
At Stephensons we have experience of large, sensitive cases with individuals charged with corruption. These cases always require an acknowledgement of the potential for destroying the reputation of those individuals. It is vitally important that a specialist solicitor is instructed at an early stage to limit any potential damage and to vigorously challenge the allegations.
Anti-corruption and bribery offences will affect all individuals in the UK and all UK businesses. The Act will also affect those overseas businesses conducting part of their business in the UK. An offence would be tried in the UK regardless of where in the world the bribery act took place if the business is a UK business or conducts some business in the UK.
The Bribery Act 2010 will create 4 offences:
- Bribing another person
- Requesting or agreeing to accept a bribe
- Bribing a foreign public official
- Failing to prevent a person associated with a commercial organisation from bribing another person for the commercial advantage of that organisation (the corporate offence)
The penalties for an individual can be imprisonment for up to 10 years and/or a fine. In respect of a corporation there can be an unlimited fine.
It is important to note that a corporation will be liable if an individual commits any of the first three offences with the consent or involvement of a senior officer. That senior officer will also be personally liable. The corporation becomes criminally liable for the acts of their employees, subsidiaries and agents. This would be the case even if that individual were not tried for the offence.
Statutory defence
It is a statutory defence to the corporate offence for a corporation to show that they had in place adequate procedures to prevent offences of bribery. There is no definition of ‘adequate procedures’ and as such it is important that businesses take great care to record every step they have taken to address this issue. There needs to be policies to address this issue and businesses need to ensure that employees are trained to recognise what is and is not acceptable.
