UK: the Bribery Bill and the failure of commercial organisations to prevent bribery

The Bribery Bill received its first reading last week in the House of Lords with second reading timetabled for 9 December. The Bill was published in draft earlier this year and contains provisions for the introduction of a new offence: the failure to prevent bribery by a commercial organisation (defined in clause 7(5) to include, inter alia, companies incorporated in the UK).

Clause 7(1) provides that the offence is committed where a person associated with the organisation bribes another person intending (a) to obtain or retain business for the organisation or (b) to obtain or retain an advantage in the conduct of the organisation's business. A defence is, however, provided in clause 7(2), where the organisation is able to prove that it had in place adequate procedures designed to prevent the bribery. Clause 11(5) provides that the offence is committed irrespective of whether the acts or omissions which form part of the offence take place in the UK or elsewhere. 

There is an important difference between the draft Bill and the Bill as introduced in the House of Lords regarding this new offence: the Government has removed the requirement for the prosecution to prove that the bribery took place as a result of negligence by a "responsible person" within the organisation. In its response to the Joint Committee on the draft Bill, the Government explained it change of position:

... the Government agrees that there may be a risk that requiring the prosecution to prove negligence may involve unnecessary complexity and may have the potential to undermine the broad policy objectives of bringing about a shift away from a corporate culture that is more tolerant of bribery and promoting effective corporate anti-bribery procedures".