The Bribery Act 2010 will come into force in the UK later this year and will create consistency between UK law and the OECD Bribery Convention, which the UK ratified in 1998. Although this is a UK Act, it will apply to Irish companies and partnerships with a business presence in the UK.
There are four main offences under the Act: the general offences of paying and receiving bribes, the bribery of foreign officials and the failure of commercial organisations to prevent bribery.
The corporate offence represents a significant aspect of the Act from an Irish perspective. It applies where a person “associated” with an organisation (defined broadly as persons providing services and specifically including employees, agents or subsidiaries) bribes another to gain business or a business advantage for the organisation. It is a strict liability offence and the only defence available is to show that the organisation had adequate procedures in place to prevent bribery. Guidance on what constitutes “adequate procedures” will be published by the UK Government before the Act comes into force.
The Act has extra-territorial application and offences under the Act may be prosecuted regardless of where the act or omission which constituted the offence took place. The corporate criminal offence will apply to companies/partnerships incorporated outside the UK but with a business presence in the UK. Therefore any corporations with a presence in the UK will need to familiarise themselves with the new legislation.
The Act will increase the maximum jail term for bribery by an individual from 7 years to 10 years. A company convicted of failing to prevent bribery could receive an unlimited fine.
In Ireland, the Prevention of Corruption (Amendment) Act 2001 currently applies to corruption offences (committed by bodies corporate as well as individuals) where some element of the offence has been committed in Ireland or where the offence has been committed outside Ireland but by an Irish public official. The 2008 Prevention of Corruption (Amendment) Bill, which is expected to be adopted later this year, will increase the extraterritorial jurisdiction of the 2001 Act by extending jurisdiction to offences committed abroad by an Irish citizen, a person ordinarily resident in Ireland or an Irish registered or other body corporate established under the laws of Ireland. It does not capture organisations with a mere business presence in Ireland and is therefore not as far reaching as its UK equivalent.