A Guiding Light on Bribery
| Author | David Kirk |
| DOI | 10.1350/jcla.2011.75.3.697 |
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| Subject Matter | Opinion |
OPINION
A Guiding Light on Bribery
David Kirk*
Chief Criminal Counsel, Financial Services Authority
The Bribery Act 2010 received Royal Assent on 8 April 2010. However,
it will not be implemented until July 2011 because the Guidance on
s. 7(1) of the Act, which the Ministry of Justice must publish (pursuant
to s. 9(1)), has only just been published, after much consultation. The
legislation is intended to bring the UK in line with the OECD Anti-
Bribery Convention1and to catch up with the US Foreign Corrupt
Practices Act 1977. The delay in agreeing a final draft, and implementa-
tion, has been causing raised eyebrows among law enforcers, but one
question that the problems with this provision in the Bribery Act high-
lights is whether issuing Guidance about the provisions of a statute is an
appropriate method of assisting statutory interpretation.
By way of background, the Act repeals the common law offence of
bribery together with the legislation on corruption which has been on
the statute book for 100 years: the Public Bodies Corrupt Practices Act
1889, the Prevention of Corruption Act 1906 and the Prevention of
Corruption Act 1916. This ancient legislation was deemed to be out-
dated and not fit for purpose in the 21st century, and in sweeping it aside
the Labour Government hoped to create a structure that would meet the
needs of a modern and responsible UK operating in a global economy.
The provisions were based on a Law Commission Report on reforming
bribery,2which advocated four main offences: the existing offences of
paying and receiving a bribe; and two new offences: bribing a foreign
official and a corporate offence of negligently failing to prevent bribery
by an employee or agent.
It is the latter offence, created by s. 7(1) of the Act,3which has caused
all the trouble. There have been howls of protest from commercial
interests, which are greatly troubled by the uncertainty which appears
to surround the new Act, in particular in relation to the provision of
‘facilitation payments’ and ‘corporate hospitality’.
It is not all bad news, however. A glance at the programmes being put
on by conference organisers, and at the client and contact briefings
offered by lawyers and accountants, shows that business is brisk in the
* The views expressed in this article are those of the author and do not necessarily
reflect the views of the Financial Services Authority or the Journal of Criminal Law.
1 Organisation for Economic Cooperation and Development Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, available at
http://www.oecd.org/document/21/0,3746,en_2649_34859_2017813_1_1_1_1,00.html,
accessed 20 March 2011.
2 Law Commission, Reforming Bribery, Law Com. Report No. 313 (2008).
3 Bribery Act 2010, s. 7(1): ‘A relevant commercial organisation (C) is guilty of an
offence . . . if a person (A) associated with C bribes another person intending to
obtain or retain business for C . . .’.
157The Journal of Criminal Law (2011) 75 JCL 157–160
doi:10.1350/jcla.2011.75.3.697
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