The Bribery Act 2010 (the “Act”) comes into force in April 2011 and reforms and consolidates what has been, up to now, a piecemeal approach to anti-corruption law in England and Wales.  The Act creates four criminal offences: giving bribes, receiving bribes, bribery of foreign public officials, and failure by a commercial organisation to prevent bribery by employee or agent.  A key point to note is that the offences are of wide application; bribery can:

• be direct or indirect;
• relate to financial or other advantages (not defined by the Act);
• relate to any activity or function (of a public or private nature) connected with a business; and
• take place anywhere in the world (as long as there is a connection with the UK).

The property sector too will need to be careful.  Practices such as the charging of a premium by landlords for giving consents to tenants, or the outcome of contract races will be caught by the Act, as will receiving any kind of advantage, be it receipt of property, commission or even excessive corporate hospitality.

Commercial organisations especially will need to ensure that they do not commit the ‘failure to prevent bribery by employee or agent’ offence, which attracts strict liability (i.e. no ‘fault’ by the organisation is required) and an unlimited fine.  Commercial organisations should focus on putting in place ‘adequate procedures’ for the prevention of bribery because this is the only statutory defence to the offence.

Whilst ‘adequate procedures’ is not defined by the Act, the Ministry of Justice will be publishing guidance on this in January 2011 so that commercial organisations have time to familiarise themselves with the acceptable standard and put anti-bribery policies and procedures in place.  What is already obvious, however, is that measures by organisations should at least include an express prohibition on direct or indirect bribery by or for the company, and a commitment to creating and maintaining a system to counter bribery.

For more information on these issues please contact

Patrick Tierney

or your usual Lewis Silkin contact