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Rule of Law
THE BRIBERY Act 2010 repeals
all previous statutory and common law
provisions in relation to bribery and
replaces them with the crimes of
bribery, being bribed, the bribery of
foreign public officials and the proven
failure of a commercial organisation to
prevent bribery on its behalf.
The penalties in place for those
proven to have committed criminality
under the Bribery Act are a maximum
jail term of a decade. There’s also the
potential for an unlimited fine as well as
the confiscation of goods under the
Proceeds of Crime Act 2002.
Further, proven wrongdoing can
result in the disqualification of directors
under the terms of the Company
Directors Disqualification Act 1986.
The Bribery Act allows for the
prosecution of an individual or, indeed,
a business with proven links to the UK.
This is irrespective of where the proven
criminality actually took place.
It’s important to remember that, when
the Bribery Act was first proposed, its
strongest advocates built it up as being
the legal equivalent of a silver bullet. An
Act of Parliament eminently capable of
removing a large proportion of the
wrongdoing in international business.
As recently as only two years ago, in
fact, the Bribery Act was being referred
to by members of the House of Lords as
the ‘international Gold Standard’ for
anti-bribery legislation. Indeed, some
commentators proclaim the Bribery Act
to be the toughest form of anti-corruption
legislation in the world.
Ten years since its inception, now
would appear to be an opportune time
to assess whether the Act is deserving of
‘Gold’, ‘Silver’ or even ‘Bronze’ status.
While those ascribing ‘Gold’ status
would argue this legislation has set the
standard for tackling corporate crime, its
detractors would point to the fact that
prosecutions under the Act to date have
been few and far between.
There’s little doubt that the Bribery
Act has come to be viewed as the
starting point when other countries
consider creating anti-corruption
legislation. This is partly because of just
how far-reaching it is. As stated, the
Bribery Act covers all companies of all
sizes based in – or with a close
connection to – the UK. Under the Act,
any company can be prosecuted in the
UK for proven bribery perpetrated on
its behalf anywhere in the world by its
staff, an intermediary, a third party or
even a trading partner acting for it.
Given the maximum punishments
previously outlined, the Bribery Act is a
piece of legislation that could only be
dismissed as ineffective if it was the case
that it’s not being put to work by those
who have it at their disposal.
Criticism of the Act
That, perhaps, is what has prompted
criticism. No-one can deny that the Act
has only been used sparingly in the past
decade, with most convictions being of
individuals for offering bribes (an
offence under Section 1) or for the
Section 2 offence of taking bribes.
The Section 7 strict liability offence of
failing to prevent bribery was the part of
the Act that caused most concern to the
business world when it was set to
become law. However, the fact that
Section 7 prosecutions have been rare
does seem, at least in hindsight, to have
made such concerns appear alarmist.
Although there haven’t been many
prosecutions under the Bribery Act, this
should not be taken as a sign that it’s of
little value. Three reasons can be
proposed in support of this assertion.
The first – and most obvious – of
those reasons is that bribery
investigations can be both complex and
time consuming in nature. As a direct
result of this, the courts are never going
to be swamped by a huge wave of
Second, the lack of Bribery Act-focused
prosecutions could be viewed as
a sign of its success in persuading
companies to ensure their anti-bribery
procedures are fit for purpose. Its
international reach and the severity of
the potential penalties may well have
focused minds squarely on compliance.
The third reason is deferred
prosecution agreements (DPAs). Nine of
the 12 DPAs that the Serious Fraud
Office (SFO) has concluded with
companies thus far have been related to
bribery. A number of the offences
involved were committed before the
Bribery Act came into effect and so
could not have been prosecuted under
it. Nevertheless, DPAs have been used
enthusiastically by the SFO as an
alternative to Bribery Act prosecutions.
Arguably, that’s no reason to criticise the
Bribery Act. If anything, it has been
almost a facilitator for the SFO: the
prospect of a Bribery Act prosecution
can act as the menacing ‘elephant in the
room’ when the SFO is conducting DPA
negotiations with a company that has
become entangled in bribery.
It was enough of a frightening
prospect to prompt Airbus to pay a fine
and costs amounting to €991 million
under its UK DPA (which formed part
of the company’s €3.6 billion-plus global
resolution for bribery).
All three reasons outlined have
influenced how the Bribery Act is being
used. It would be a mistake to argue
that, just because there have only been
occasional prosecutions, the Act has
somehow been a failure. The lack of
prosecutions to date is purely down to
the Act’s use by the authorities rather
than any fault with the Act itself. •
Aziz Rahman is Senior Partner at
Introduced to Parliament in the Queen’s Speech
during 2009, the Bribery Act 2010 came into force
on 1 July 2011. A decade down the line, has this piece
of legislation actually lived up to the hopes and
expectations that surrounded its arrival?
Aziz Rahman puts forward his perspectives