All organisations doing any business in the UK need to take active steps to manage the risk of criminal liability under this new Act

The provisions of the Act come into force in April 2011.

An obligation on all commercial organisations doing any business in the UK

Recent draft guidance published by the UK Government makes it clear that all organisations carrying on any business in the UK, wherever they are actually resident, should be taking steps to ensure that they have adequate procedures designed to prevent acts of “bribery” by their “associates”.

Without such adequate procedures in place, organisations themselves and, potentially, their management, will be guilty of a criminal offence if their associates commit an act of bribery.

Prevent bribery by “associates”

There are a number of offences under the Act but the principal issue of concern here relates to “active bribery” by “associates”.  “Active bribery” is…

…where a financial or other advantage is offered by A (the “associate”) to B (anyone) to reward improper performance of B’s duties (this can include B failing to act in accordance with obligations imposed in an employment contract, for example).

It is a very broad definition going well beyond the popular notion of bribery entailing amounts of cash or other value being exchanged for commercial favours.  It is illustrative to note that active bribery can occur without the person being “bribed” being aware that anything improper is taking place.

An “associate” is very widely defined.  It includes anyone who performs services for or on behalf of the relevant commercial organisation.  Associates may therefore include (but are not limited to) employees, consultants, agents, sales agents, service providers and suppliers and their sub-contractors, or subsidiary or other group companies.

“Adequate procedures”

In determining whether there are “adequate” procedures in place, the draft guidance published by the UK government provides for six principles/compliance steps that organisations should follow to protect themselves from prosecution

• Risk assessment – assess the risks of bribery in your organisation and its “associates”
• Top level commitment – a commitment to compliance from the highest rank
• Due diligence – review and revise existing procedures as appropriate
• Clear procedures – ensure there are clear procedures in place, including with “associates”, to address the risk of bribery
• Effective implementation – of such procedures
• Monitoring and review – a system to ensure that the procedures are reviewed and amended to catch new risks as they arise or are identified

The Act is complex and will require careful review as to how it will impact on your organisation.

Action

All commercial organisations conducting any business in the UK should review their anti-bribery procedures in good time in advance of 1 April 2011 to ensure that they are adequate in the context of the very wide definition of offences contained within the Act.

Abbiss Cadres offer a full compliance service to enable you to assess and implement appropriate and proportionate procedures to manage the real risks raised by the Act.

If you would like to discuss the implications raised by the Bribery Act please contact Guy Abbiss or David Widdowson on +44 20 3051 5711.