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Bribery Act 2010 The Bribery Act (the “Act”), which received Royal Assent on 8 April, is due to come into force later this year. The UK was criticised by the Organisation for Economic Cooperation and Development (OECD) working group in 2008 for not doing enough to comply with the 1997 OECD Bribery Corruption Convention. The Act finally provides the UK with a modern, consolidated corruption law. The Act applies both to public and private sector corruption, to companies incorporated in the UK and to any organisation which carries on business or part of a business in the UK. When the Act comes into force later this year, it will create the general offences of (a) offering or paying a bribe to another person and (b) agreeing to receive or accepting a bribe. There will also be a specific offence of bribing foreign public officials and a new corporate offence of failure by a commercial organisation to prevent bribery being undertaken on its behalf. An important element of the general offences is that there must by ‘improper performance’ as a result of offering or receiving the bribe whether by the person who receives the bribe or by a third party. The term ‘improper performance’ has been defined as conduct falling short of a reasonable person’s expectation of good faith, impartiality or trust. The Act introduces a new offence for companies and partnerships that fail to prevent bribery by persons undertaking activities on their behalf. The term agent extends, potentially, to a supplier or business party. This will have far-reaching consequences for company directors and management, as it imposes strict liability on companies for bribery and corruption that takes place on their behalf. Failure to prevent bribery is now a criminal offence without the requirement to prove negligence. A business can avoid conviction for the corporate offence if, it can show that it has ‘adequate procedures’ in place to prevent bribery. The term ‘adequate procedures’ has not been defined by the Act and there is guidance due to be issued in the future by the Secretary of State. Measures should be put in place by commercial organisations to ensure that they are compliant with the Act. In that respect, a review of internal procedures to prevent bribery should be undertaken and there should be provision made for training staff and contractors and the businesses should carry out due diligence before entering into arrangements with other parties. It would also be worthwhile to review the hospitality and gift policies to ensure that they are compliant with the Act. Sonali Khanna |