COMMENTARY: Opinions on the UK Bribery Act of 2010

According to the Barbados Nation Newspaper’s online version of 26 September 2011, there is a call for Caribbean islands to implement a similar or identical act to fight and eliminate bribery in all forms regionally.  But what is the UK Bribery 2010 Act (the Act)?

The much anticipated Bribery Act 2010 (The Act) of the United Kingdom came into force on 1st July 2011.  The Act is broad and covers any act or omission intending to gain a financial or other advantage or any act or omission which one knows or believes would result in the gain of a reward consequent to that improper conduct. The Act defines being bribed as simply agreeing to receive or accepting of a gift, or offer, etc.  And the function or activity to which the bribe relates is one for which there is a breach of a relevant expectation, or indeed, where the function or activity is in and of itself a breach of a relevant expectation. Public Officials, businesses and individuals are affected by the Act in so far as they have some connection with the United Kingdom. Companies whose agents or employees receive gifts must show that they have adequate procedures in place.

The Act has been much anticipated by practitioners in the United States, the United Kingdom and Europe. It is extremely broad with far-reaching effects on both commercial entities and private persons having a connection in the United Kingdom. Some practitioners define this piece of legislation as a “one-stop shop” which has replaced the “piecemeal” development of this law (like all UK laws).

The Act is defined as “An act to make provision about offences relating to bribery; and for connected purposes.” This broad definition allows the Act to bite in providing general bribery offences in two separate cases for bribery of private individuals, including businesses and partnerships, and a separate provision bites where the bribery is of a public official.

Indeed the offence of bribery is cavernous.  It globalises any offer, promise or giving a financial or other advantage with the intention to induce another to perform improperly a function or activity or any offer, promise or giving a financial or other advantage as a reward consequent to the improper performance of that function or activity. Also the person who makes the bribe must know or believe that the acceptance (by the other party) of the advantage would constitute an improper performance. Because of this implied knowledge or belief, the Act warrants that being bribed is simply agreeing to receive or accepting (the bribe).

The function or activity which is performed and to which the bribe relates could either be the function of a public nature, for example that of a Magistrate (Lay or otherwise), an activity connected to a business, an activity performed in the course of employment or indeed, an activity performed by or on behalf of a company. And for there to be a bribe, there must be an improper performance of that function or activity.  The improper performance must as a result be performed in breach of a relevant expectation, and a failure to perform the function or activity is in itself a breach of a relevant expectation.

A very interesting and highly relevant aspect of this legislation for Caribbean islands and for international business transactions is that in an analysis of the expectation, the Courts are to have regard to what a reasonable person in the United Kingdom would expect in relation to the performance of the type of activity or function. And no regard is to be had for local customs or practice extant in the country in which the improper performance or the failure to perform occurs, unless such practice or custom is permitted or required by the written law applicable to the relevant country.  Thus judicial decisions evidenced in published written sources are to be used as a guide in the analysis of the expectation.

The Act further addresses the bribery of public officials and, indeed, includes the bribery of foreign public officials as an agent or official of a public international organization, or those who hold a legislative, administrative or financial position or ANY kind, whether appointed or elected in ANY country, including outside the United Kingdom, and who exercises in a foreign public function.  The bribery of such foreign public officers must be to obtain an advantage in a trade or business.

The Act, in an effort to promote transparency, imposes a duty on businesses to prevent bribery by an associated person (an employee, an agent, a subsidiary, etc). Businesses (or an associated person) charged with the offence of bribing another person intending to obtain business or retain an advantage in their business must show they had in place adequate procedures to prevent any such conduct.

Finally the Act, while of territorial application, for enforcement, applies whether the act or omission occurred in the United Kingdom or outside the United Kingdom. Provided the person, business, trade, partnership or business transaction, has a close connection with the United Kingdom.

In conclusion the overreaching principle in this piece of legislation is a no-tolerance approach to the act of bribery and corruption. All persons, whether in the Caribbean or intending to transact there (or elsewhere) are to be highly mindful of its nature and contents given its broad reach.  Individuals seeking to do business or trade and who offer to public officials or foreign public officials ANY promise or advantage (financial, gift, charitable offer) will face the relevant penalties provided for in the Act. Commercial entities who receive gifts must show they have adequate procedures in place and that any gifts, are not, a priori, as a result of a bribe.

Marcia B. Moulon-Atherley, Esq is a licensed in New York, Barbados, and Dominica.

 This opinion piece is for guidance only and is not to be taken as legal advice. You will need to contact a legal adviser for any advice relating to your situation.