Cases where a commercial organisation may be guilty of bribery

A relevant commercial organisation is guilty of an offence if a person associated with the organisation bribes another person, intending to obtain or retain business or a business advantage for the organization. An "Associated person" is defined widely to include people who perform services for, or on behalf of, the organisation regardless of their capacity. 

An associated person may include, for example, the company's: 

• Employees.
• Agents.
• Subsidiaries.
• Joint venture partners.

The offence can be committed in the UK or overseas and is effectively a strict liability offence, that is, there is no requirement to show fault on the part of the commercial organisation.The Bribery Act 2010 provides a defence if commercial organisations can show that they had in place adequate procedures designed to prevent bribery.

On 30 March 2011 the Ministry of Justice published guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from committing bribery. Tackling this scourge is a priority for anyone who cares about the future of business, the developing world or international trade. That is why the entry into force of the Bribery Act on 1 July 2011 is an important step forward for both the UK and internationally. The Act means there will be punishment served in cases when and where bribery is unlawfully committed.

The Ministry of Justice sets out six principles with intent to give all commercial organisations a starting point for planning, implementing, monitoring and reviewing their bribery free business regime. They include: 

• Principle 1: Proportionate procedures.
• Principle 2: Top level commitment.
• Principle 3: Risk assessment.
• Principle 4: Due diligence.
• Principle 5: Communication.
• Principle 6: Monitoring and review. 

The MOJ guidance is aimed at giving clarity on how the Bribery Act 2010 operates to help commercial organisations of all sizes and sectors understand the procedures to prevent bribery taking place. It strongly advocates a risk based approach to adopting adequate commercial procedures, acknowledging that different procedures will be appropriate depending on the size of the organisation, the sectors and jurisdictions in which it does business, as well as the nature of its business partners and transactions. They should be proportionate to the risks faced by the organisation. 

The guidance is not prescriptive but, after each of the principles, it does suggest procedures that are designed to help organisations address the relevant principles. It is for organisations to review their businesses, carry out the relevant legal risk assessments and determine whether their procedures are adequate to prevent bribery. Where they are not, they should seek to implement anti-bribery procedures without delay. It is clear is that it will be more vital than ever that companies that operate in high-risk environments have strong anti-corruption policies and procedures in place and that they adhere to them strictly.