Nicholas Yeo

BRIBERY ACT 2010

The Bribery Act 2010

Enacted 8 April 2010
In Force?

Response to international pressure

OECD Transparency International

Single Act to replace old law

Scope - Global
Nationality
British national or Ordinarily resident in the UK Corporate

Conduct
Or any act or omission which forms part of the offence occurs within the UK

Commercial organisations for s7

Business presence in the UK

Scope Person
Offences committed by a person
Natural individual Legal corporation

Identification: directing mind and will of the company is guilty then company can be guilty Any senior officer who consented or connived For the failure to prevent offence s7: any associated person who carries out services for the commercial organisation

Functions to which a bribe relates

One of
function of a public nature, connected with a business, in the course of a person's employment, performed by or on behalf of a body of persons (whether corporate or unincorporate).

AND that a person performing it:

is expected to perform it in good faith. is expected to perform it impartially. is in a position of trust by virtue of performing it.

Key Concept
Improper Performance
(a) is performed improperly if it is performed in breach of a relevant expectation, and (b) is to be treated as being performed improperly if there is a failure to perform the function or activity and that failure is itself a breach of a relevant expectation.

What a reasonable person in the UK would expect in relation to the performance of the type of function or activity

Offences
Paying a bribe
Induce a person to perform function improperly OR person know that accepting the bribe would be improper

Receiving a bribe Bribing a foreign public official

Facilitation payments
Payments to facilitate proper performance Versus to induce improper performance
But improper to accept the payment?

Corporate Hospitality
Most routine and inexpensive hospitality would be unlikely to lead to a reasonable expectation of improper conduct. Sporting events where host is present/not present? Branded mousemats> Branded iPads? Lobbying

The Fuss
Failure to prevent bribery
By an associated person To obtain business

Adequate Procedures

Criminal not Regulatory

Lack of defence not to have adequate procedures So
Co with worst procedures gets off whilst unlucky one with imperfect ones is punished Need a jury not a regulator to determine adequacy of procedures Imports confiscation regime, SCPO, FRO etc Foundation for money laundering

Adequate Procedures
Awaiting Guidance
Risk Assessment Top-level Commitment Due Diligence Clear Practical and Accessible policies and procedures Effective Implementation Monitoring and Review

Bribery Act 2010

Global Scope Corporate liability Includes facilitation payments S7 Failure to prevent Need adequate procedures
Await guidance Relevant to sector Relevant to organisation

Nicholas Yeo

BRIBERY ACT 2010