Last month the Bribery Bill received Royal Assent and is expected to come into force as the Bribery Act 2010 later this year. The Act came about partly as a response to international criticism about the weakness of the UK's anti-corruption legislation.

The Act provides that an offence of bribery is committed if a person offers or gives a financial or other advantage with the intention of causing the other person to improperly perform a public or commercial function. Improper performance is judged against the standard that a reasonable person in the UK would expect the activity to be performed at. An offence is also committed if a person receives a bribe and accepts an offer as described above. The maximum jail term for an individual for committing this offence is now ten years.

Most significantly, there is now a duty on a 'Relevant Commercial Organisation' ("RCO"), which includes any company or partnership, to put 'adequate procedures' in place to prevent offences of bribery. If an RCO cannot show it has 'adequate procedures' in place then it may face an unlimited fine if it is found guilty of an offence. There are also collateral consequences such as the disqualification of directors as well as the possibility of a senior officer being liable as an individual if they connive or consent to bribery.

An offence can be committed by any 'associated person' of an RCO which includes its employees, agents and subsidiaries. The offence is a strict liability offence meaning that an RCO may be guilty of a bribery offence even if no one within it knew about the bribery.

'Adequate procedures' has not been defined in the Act, however, there is a provision within it which requires the Secretary of State to publish guidance about the procedures that RCOs should put in place. This guidance is not yet available, however there are some practical steps that an RCO can take to prepare itself in advance:

• Ensure Director level awareness and support by talking to your board about the new law and the effect it can have on them personally as outlined above;
• Implement an internal monitoring system to ensure compliance throughout the RCO as well as monitoring any 'associated persons' as defined above. This should include rigorous checks of any third party with whom the RCO may work and even considering anti-corruption clauses in standard form agreements;
• Assess the risks that your RCO faces. RCOs involved with licences, permits and other regulatory relationships are particularly at risk. RCOs who have charitable organisations and government agencies as customers must also be vigilant, even to the extent of monitoring corporate hospitality carefully so as not to fall foul of the Act;
• Ensure that your RCO can show that there are procedures in place within it by having clear, accessible policies relating to prevention and whistle blowing;
• Consider having training sessions on such policies particularly if your RCO is at high risk.

It seems clear that the Act, once in force, will put significant pressure on RCOs. As a result of the wide reaching provisions of the Act and the severity of its penalties we will be paying close attention to any updates given on how to avoid infringement and keep you informed.

Authors:
Louis Castellani, Partner
Natasha Horsey, Trainee Solicitor