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All business people must be aware that the Bribery Act created new offences:-
(i) Offering, promising or giving a bribe;
(ii) Requesting, agreeing to receive or accepting a bribe;
(iii) Bribing a foreign public official.
The maximum penalty for these three offences is 10 years imprisonment or an unlimited fine and both companies and individuals may commit the offence.
A bribe occurs when a financial or other advantage is given or received in return for the improper performance of a public or business function. This covers cases such as bribery to secure a contract, bribery to submit an inflated tender, to wrongly increase a valuation or to wrongly issue or withhold a certificate or decision under a contract.
This is an area which has generated much debate and the Government has published guidance on it. Before we can be sure how the law will work we will need to wait until cases have been before the Courts, but it is now fairly clear that reasonable and proportionate corporate hospitality aimed at maintaining good relations will not be treated as bribery.
So you could take a client or business contact to the Millennium Stadium or to a Test Match as a way of keeping in touch and developing a personal relationship. On the other hand, taking a business acquaintance and his family to, for instance, Dubai for a Grand Prix and giving them an expenses paid week in a luxury hotel in return for a business favour will probably amount to an offence. As so often, it is easier to say what is an offence and what is not an offence than to state exactly where the line will be drawn.
All business organisations (company or partnership) need to know that they will be guilty of an offence where an associated person (any person or company who performs services for that organisation) bribes another person with a view to obtaining or retaining business, or a business advantage for that commercial organisation. The Courts can impose an unlimited fine.
A business would be liable if, for instance, an agent of a developer gives a bribe in connection with the grant of Planning Consent, or if a third party is used to make a bribe where you are hoping to win a contract, or if a journalist gives bribes to obtain a story.
It is important to have an anti-bribery policy, because the only defence available is that the commercial organisation must prove that it had adequate procedures in place to prevent associated persons from committing bribery. Broadly speaking, every company must have a proper anti-bribery policy with guidelines and procedures including staff training. The company must carry out risk assessments, look at the contract terms and carry out due diligence on all associated persons.