There was never any doubt of the importance that the Bribery Act 2010 was meant to hold for UK corporate governance. The new law was intended to beef up existing anti-bribery initiatives to further mitigate the risk of bribery in the UK as well as overseas, in the process, helping to ensure the continued integrity of British business.
The Act covers such offences as the offering, promising or giving of a bribe, requesting or agreeing to receive or accept a bribe, the bribing of a foreign public official and the failure to prevent bribery, the latter solely applicable to relevant commercial organisations.
With the Act as a whole applying to all UK and foreign corporations with a presence or operation in the UK, as well as to any UK or citizen or resident, it was widely thought from the legislation’s introduction that it sufficiently covered all potential instances of bribery.
However, despite the Act being seen as much more stringent than other anti-bribery legislation around the world, such as the Foreign Corrupt Practices Act (FCPA) in the US, the first four years or so after it came into force proved uneventful.
The importance of the legislation, however, was demonstrated by the emergence of three corporate wrongdoing cases in succession in late 2015 – Brand-Rex Ltd in September 2015, Standard Bank in November 2015 and Sweett Group plc in December 2015. All three of these cases led the Serious Fraud Office (SFO) to impose substantial financial sanctions.
The three cases were instrumental in demonstrating the true worth and strength of the Act, particularly with regard to the use of a Deferred Prosecution Agreement (DPA) in the Standard Bank case. A DPA, as its name suggests, enables a prosecution to be suspended in the event of the organisation meeting certain conditions, such as compensation, penalty payments or ongoing cooperation, thereby avoiding an expensive trial.
Despite these notable recent successes for the legislation, rumours persist that the government could seek to modify it to loosen restrictions in certain areas. This may be especially likely in light of criticism that the legislation creates a blanket ban on facilitation payments to foreign officials without taking into account cultural differences where such payments are not regarded as bribery.
Whatever modifications to the Act may eventually come into force, there can be little doubt of the significant – if belated – impact that it has had as a credible tool for tackling corporate bribery. Finally showing its power as a legislative force, the Bribery Act 2010 has now come of age, years after its introduction, to the benefit of British business integrity.
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June, 2016