Matthew Swynnerton explains the impact of the Bribery Act 2010 on scheme trustees

Background
The Bribery Act 2010 came into force on 1 July 2011 and aims to consolidate and simplify the law in relation to bribery. It contains four main offences, the first three can relate to all trustees, whereas the fourth applies to corporate trustees:

1. Bribing another person;
2. Being bribed;
3. Bribery of foreign public officials;
and
4. Failure of commercial
organisations to prevent bribery.

Bribing another person and being bribed ("general offences")
The offence of bribing another person covers offering, promising or giving a bribe. The offence of being bribed covers requesting, agreeing to receive or accepting a bribe. A bribe is defined as a financial or other advantage. Both offences must occur in circumstances involving "improper performance of a relevant function or activity", which includes: activities connected with a business, performed in the course of a person's employment and those performed by/on behalf of a body of persons. Therefore functions of company directors and a trustee board fall under this definition.

For "improper performance", the person or body performing the relevant function or activity must be expected to act in good faith, impartially, or in accordance with a position of trust, but breaches this expectation. This is an objective test.

Bribery of foreign public officials ("FPO")
This consists of a person offering, promising or giving an FPO a bribe, with the intention of influencing the FPO and intending to obtain or retain business, or an advantage in the conduct of business. An FPO includes anyone who holds a legislative position, a governmental position or acts for a public international organisation.

Failure of commercial organisations ("corporate") to prevent bribery
A corporate is guilty of either general offences or bribing an FPO if it fails to: prevent a person associated with it (i.e. its employees, agents, intermediaries and subsidiaries), performing services on its behalf, bribing another person intending to obtain or retain business or an advantage in the conduct of business for the corporate. A corporate means any company, including trustee companies, formed or incorporated in the UK or carrying on a business in the UK.

Senior officers of a company (directors) who "consented or connived" in a bribery offence committed by the corporate are, along with the corporate, liable for that offence.

It is a full defence to prosecution if the corporate can demonstrate it had in place "adequate procedures" to prevent bribery, so trustee companies will want to ensure they have procedures in place.

Penalties
For individuals there is a maximum penalty of 10 years' imprisonment and/or an unlimited fine. For a corporate fines are unlimited, with possible money laundering charges.

Conclusion
The Act creates a new offence imposing liability on organisations, including trustee companies and broadens the jurisdictional reach of UK anti-bribery laws.

Bona fide hospitality will not constitute an offence under the Act, if reasonable and proportionate. "Prosecutors will consider very carefully what is in the public interest before deciding whether to prosecute".

Trustees should complete a risk assessment, e.g. recording any corporate hospitality received. Trustees can utilise a tailored version of the employer's bribery policy to suit their needs.

Written by Matthew Swynnerton, partner at DLA Piper UK

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