The Bribery Act 2010 makes it an offence to offer, give, promise or; request, accept or agree to accept, a financial or other advantage in exchange for improperly performing a relevant function or activity. The Act also makes it an offence for a corporation that fails to prevent bribery within its organisation or associated persons.
A financial or other advantage in exchange for improperly performing a relevant function or activity, connected to a business or performed in the course of a person’s employment could be an offence of bribery.
It is well established in most business cultures that entertaining will take place with the use of corporate gifts and hospitality. To avoid any inference that the same is intended to influence they must be reasonable and proportionate.
Due to the potential effect on fair business competition, bribery charges can lead to serious sentences including huge fines and imprisonment.
What are the offences?
The Bribery Act 2010 has four categories of offences.
- Bribing a person (section 1 of the Act)
- Being bribed (section 2 of the Act)
- Bribing foreign public officials (section 6 of the Act)
- Failure of commercial organisations to prevent bribery (section 7 of the Act)
Section 1 of the Act
This section of the Act deals with the briber. Bribery offences must be connected to a relevant function or activity, which must be performed improperly and in a manner which is not in accordance with relevant expectation. A person is guilty of this offence if he promises or gives a financial or other advantage to another person, where it is intended to induce that person into performing a relevant function or activity improperly or to reward that person for their improper performance.
Section 2 of the Act
Section 2 of the Act relates to offences of being bribed. A person is guilty of this offence if they accept, agree to receive or request a financial advantage with the intention for a relevant function or activity to be performed improperly.
Section 6 of the Act
Section 6 of the Act makes it an offence for an individual or a corporation, to offer, promise or give any financial or other advantage to a foreign public official, either directly or through a third party. For this offence to be made out, the prosecution must prove only the requisite intention. There is no requirement to show that the public official acted improperly.
Section 7 of the Act
Section 7 of the Act makes it a strict liability offence for commercial organisations, where a person associated with the commercial organisation bribes another person, hoping to obtain or retain their business or an advantage in the conduct of business. If a corporation can prove that it had adequate procedures in place to prevent bribery then it may have a defence to this section of the Act.
Are there any defences to bribery?
Defence to section 7 of the Act
It is a defence for a corporation in a prosecution for failing to prevent bribery, where the corporation or its associated persons can prove that it had adequate procedures in place prior to the date of the allegation, to prevent bribery. The requirement for adequate procedures is not that they merely exist but that they are practically effective and that staff have been trained in respect of those procedures. Regular updates and refresher training seminars should also be considered for all staff, including directors of the companies.
Section 13 Defence (Intelligence Service or Armed Forces)
Section 13 of the Act provides for a defence for a person charged with bribery offence (except s.6 offence or to an offence under s.1 which would also be an offence under s.6). The burden of proof lies with the person accused to show that the act was necessary for the proper exercise of any function of an intelligence service or any function of the armed forces when engaged in active duty.
It is imperative that you are represented by experts in this field, who have the ability to assess and analyse the complexities which arise out of these types of cases. At Richardson Lissack we work tirelessly to ensure your defence is fully explored to achieve the very best outcome during the investigation stage to try and avoid charges.
Our lawyers are available 24/7 to assist you and provide legal advice. Contact London 020 3753 5352 or Manchester 0161 834 7284. Alternatively you can email firstname.lastname@example.org