Unintended Consequences of Bribery Act

Article excerpt

Byline: NEIL WARWICK

THE Bribery Act 2010, which will come into force this summer, is a classic example of something relatively simple, snowballing to take on a life of its own!

It is nothing new that the making or receiving of bribes is an offence - it has been for a very long time. In its original form, the Bribery Act was intended to codify and clarify what bribery offences are, to make it easier to understand. However, during its passage through the legislative process, a catch-all provision was added to make it unlawful for a corporate body to allow bribery to be undertaken on its behalf.

The result of this is that essentially, a corporation would not be able to use the excuse of a maverick employee acting (in legal terms) "on a frolic of his own". Simple enough so far you would think.

The catch-all provisions have been drafted in such a way, however, that they mean that corporate entertaining could become classed as a bribe in certain circumstances, and that individuals within corporations will have to take responsibility to ensure this does not happen. Even before the Bribery Act has come into force, its effects are already being felt. For example, corporations/employers are having to interpret the Bribery Act into a firm-wide policy so that their employees will be informed of their obligations which has led to a huge upsurge in the need for training on the issue. This in turn has thrown up the need for some form of reporting procedure.

In order to combat the criminal offence of making or giving a bribe, the only defence an individual or a business has to avoid a criminal prosecution is to maintain evidence of corporate entertaining (given or received). For the public sector, a specific Bribery Act Policy will be necessary to ensure compliance with public procurement and tendering processes. …

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