The Bribery Act 2010

1. The Bribery Act 2010 Rhodri Davey Partner & Head of Employment Team

2. The Act

3. The Bribery Act 2010 An Act to make provision about offences relating to bribery and for connected purposes. • 20 Sections • 2 Schedules • 43 Page guidance • In force 1st July 2011

4. Bribery – the statutory definition A financial or other advantage: • Given by A to B • With a view to inducing B or C • to perform improperly a relevant function or activity, or • to reward them for such improper performance • Or where the acceptance of the bribe itself constitutes improper performance (Section 1)

5. Bribery – the statutory definition Relevant Function or activity • Public • Business • Course of employment • On behalf of a body (corporate or unincorporated) • May include functions or activities not connected with or performed in the UK

6. Bribery – the statutory definition “Improper Performance”means: • A performance or activity performed in breach of a relevant expectation. • A failure to perform the function or activity where there was a breach of a relevant expectation

7. Bribery – the statutory definition “Relevant Expectation” means: • What a reasonable person in the UK would expect • Where the performance is not subject to UK law, disregarding any local custom or practice unless permitted or required by the written law applicable in the country or territory concerned.

8. Bribery – the offences Giving a Bribe (Section 1)

9. Bribery – the offences Giving a bribe • Inducing a person to perform improperly a relevant function or activity • Rewarding a person for the improper performance of such a function or activity

10. Bribery – the offences Giving a bribe (cont) Provided, so far as the person performing the function or activity is concerned, that: • They are expected to perform it in good faith; or • They are expected to perform it impartially; or • They are in a position of trust by virtue of performing it.

11. Bribery – the offences Receiving a Bribe (Section 2)

12. Bribery – the offences Receiving a Bribe • Requesting/ accepting a financial or other advantage; AND • intending that in consequence a relevant function or activity should be performed improperly; OR • as a reward for such improper performance. • Requesting/ accepting a financial or other advantage where the request, agreement or acceptance itself constitutes the improper performance of a relevant function or activity.

13. Bribery – the offences Bribery of a Foreign Public Official (section 6)

14. Bribery – the offences Bribery of a Foreign Public Official • Bribing a foreign public official: • with the intention to influence them in their official capacity; and • with a view to obtaining/retaining business or business advantage. • “Foreign public official” includes any individual holding a legislative, administrative or judicial position of any kind or exercises any public function anywhere outside the UK.

15. Bribery – the offences Failure to Prevent Bribery (Section 7)

16. Bribery – the offences Failure to Prevent Bribery It is an offence for a relevant commercial organisation to fail to prevent giving or taking of a bribe by a person associatedwith it. “Relevant Commercial Organisation” means: • Partnership or incorporated body formed in the UK and carrying on business in the UK or elsewhere; • Partnership or incorporated body, wherever formed, carrying on business in the UK “Business” includes a trade or profession

17. Bribery – the offences Failure to prevent bribery (cont) “Associated person” includes:- • An employee, worker or agent • A subsidiary • Any other person performing services for or on behalf of another Where the associated person is an employee, the presumption is that he/she does provide services. (Section 8)

18. Bribery – the offences Failure to prevent bribery (cont) • It is a defence for the organisation to show that they had in place adequate procedures designed to prevent such conduct. (Section 7) • The Secretary of State must publish Guidance about procedures that may be put in place (Section 9)

19. Jurisdiction • British courts have jurisdiction over s. 1, 2 and 6 offences committed in the UK • British courts have jurisdiction over s. 1, 2 and 6 offences committed outside the UK if Defendant has a close connection with the UK • British National • Ordinarily resident in the UK • Body incorporated in the UK • Scottish partnership • British courts have jurisdiction over s. 7 offences even if the alleged offence took place outside the UK.

20. Penalties • Maximum penalty (Magistrates Court ) • 12 months’ imprisonment • fine up to £5,000 • an unlimited fine in the case of a partnership or corporation • Maximum penalty (Crown Court) • 10 years’ imprisonment • unlimited fine • Maximum penalty; s. 7 offence (Crown Court only) • unlimited fine.

21. Decision to prosecute Proceedings under the Act may be instituted in England and Wales only with the consent of: • DPP • Director of the SFO • Director of Revenue and Customs Prosecutions

22. The Guidance

23. The Guidance THE SIX PRINCIPLES • Proportionate procedures • Top level commitment • Risk assessment • Due diligence • Communication and training • Monitoring and review

24. The Six Principles 1. Proportionate procedures • Size of business • Type of business • Type of persons involved

25. The Six Principles 2. Top level commitment “The top level management of a commercial organisation (be it a board of directors, the owners or any equivalent body or person) are committed to preventing bribery by persons associated with it. They foster a culture within the organisation in which bribery is never acceptable.”

26. The Six Principles 3. Risk assessment “The commercial organisation assesses the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with it. The assessment is periodic, informed and documented.”

27. The Six Principles 4. Due diligence “The commercial organisation applies due diligence procedures, taking a proportionate and risk based approach in respect of persons who perform or will perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.”

28. The Six Principles 5. Communication and Training “The commercial organisation seeks to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training, that is proportionate to the risks it faces.”

29. The Six Principles 6. Monitoring and Review “The commercial organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and makes improvements where necessary.”

30. The Guidance Providing Hospitality • Reasonable and proportionate hospitality is recognised as an important part of doing business and it is not the intention of the Act to criminalise it. • Standard of reasonable person in UK. • No wish to bring full force of criminal law on well run commercial organisations.

31. The Guidance Providing Hospitality • Promotional or other similar business expenditure may constitute bribes, but.. • Bona fide hospitality and reasonable and proportionate promotional or other business expenditure is acceptable if it seeks to: • Improve the image of the organisation; • Better present products and services; or • Establish cordial relations.

32. Bribery – the blush test

33. Checklist • Assess risks • Due diligence • Proportionate measures • Zero tolerance Message • Amend existing policies (disciplinary/whistle blowing/tendering/gifts) • New corporate hospitality etc. policy • Amend contracts of employment • Amend contracts with agents • Training • Review (regular and incident based)

34. Thank you