The document provides an introduction to the UK Bribery Act 2010. It summarizes the Act's main provisions, including general bribery offences, foreign public official bribery, corporate failure to prevent bribery, penalties, and timeline for implementation. It also discusses draft government guidance on adequate anti-bribery procedures and considerations around communications and crisis management related to bribery issues.

1. An Introduction to the Bribery Act
2010
Nick Benwell
20 January 2011
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.

2. General offences
 Bribery: offering/giving/receiving an advantage, intending to induce or reward
improper performance; or knowing or believing that acceptance would in itself be
improper
 “Improper” performance means performance in breach of expectation of good
faith/impartiality or i b
f ith/i ti lit in breach of t t
h f trust
 Jurisdictional reach
– Activity i the
A ti it in th UK
– British citizens
– Individuals ordinarily UK resident
y anywhere in the world
– Corporate bodies incorporated in the UK
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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3. The Foreign Public Official offence
 FPO = anyone who:
– holds a legislative, administrative or j
g , judicial p
position
– exercises a public function (inc for any public agency or enterprise)
– is an official of a public international organisation
 Payer must intend:
– to influence FPO
– to obtain or retain business or an advantage
 Payer must offer, promise or give an advantage to FPO or someone at FPO’s
request/assent
 Note: no requirement of impropriety
 Defence – if written local law permits or requires FPO to be influenced by the advantage :
p q y g
usually it doesn’t!
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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4. The corporate offence
Failure to prevent corruption
 Failure by a company (‘C’) to prevent bribery of a third
party (‘X’) by another company or individual (‘A’)
 Where A is performing services for C
 And A intentionally bribes X with the intention of obtaining business for C
 A may therefore be
– Employee
– Director or officer
– Agent
ge t
– Trustee
– Subsidiary or affiliate
– Joint venture (incorporated or unincorporated)
– Supplier
– Contractor
 Jurisdiction: UK incorporated companies and foreign companies carrying on a business in
UK
The only defence is to show adequate anti-bribery procedures in place
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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5. Draft Government Guidance
The six principles
 Risk assessment
 Top level commitment
 Due diligence
 Clear, practical and accessible policies and procedures
 Effective implementation
 Monitoring and review
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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6. Penalties
 Up to 10 years’ imprisonment
 Unlimited fines (individuals and corporate)
 Debarment from Government contracting within the EU (no time limit)
 Note: international cooperation/extradition
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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7. Timetable
 Act received Royal Assent – 8 April 2010
 Adequate procedures: consultation on draft guidance from 14 September until 8
November 2010
 Final guidance to be p
g published in late January 2011
y
 Attorney General’s guidance to prosecutors
 Act comes into force April 2011
 Plea deals and the ECA
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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8. Communications
 Internal
– Tone from the top – compliance must come first
p p
– Policies and procedures – ensuring awareness
– Training
– Hotlines
– Crisis management
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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9. Communications
 External
– High risk/high p
g g profile
– Risk of serious brand damage
– Strong press interest, and investigative journalism
– Role of disgruntled employees or competitors
 Crisis management
– Coordination and control
– Careful messaging (avoid the early inconsistent message)
– Document risk
 The recovery phase
– Speed of recovery driven by how well company and its leaders are seen to have
managed the crisis
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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10. Nick Benwell
T: +44 20 7825 4236
E: nick.benwell@simmons-simmons.com
 Nick is Head of Simmons & Simmons’ international Crime, Fraud & Investigations Group. He advises on criminal
investigations, bribery and corruption issues and fraud for clients in various industry sectors including financial
institutions. He is a member of the CBI’s working committee on the Bribery Act and Vice Chair of the IBA Anti-
Corruption Committee.
 Nick is recommended as a leading practitioner in the “Who’s Who of Business Crime Lawyers”. He is described by
Chambers Guide and Legal 500 as: “excellent at identifying problems, then using his outstanding judgement to find
appropriate solutions”; “sharp as a razor and a savvy tactician”; and "absolutely first class."
 Recent experience includes:
– Advising on several high profile SFO corruption investigations.
– Advising on a corruption investigation including possible tax evasion and money laundering issues. The case
involved payments th
i l d t through a number of j i di ti
h b f jurisdictions, i l di th US and th need t work with l
including the US, d the d to k ith local C
l Counsel i
l in
Asia (FTSE 100 client).
– Advising an investment bank on an employee fraud which involved obtaining search and freezing orders, tracing
assets and liaising with criminal and regulatory authorities in a number of jurisdictions.
Simmons & Simmons: Ranked: Tier 1: Criminal: Corporate Chambers 2010
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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11. simmons-simmons.com
elexica.com
© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
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