The Bribery Act: The First 10 Years – John Binns and Umar Azmeh write for The Barrister

The Bribery Act: The First 10 Years – John Binns and Umar Azmeh write for The Barrister

BCL partner John Binns and associate Umar Azmeh’s article ‘The Bribery Act: The First 10 Years’ has been published in the October edition of The Barrister Magazine.

Here’s an extract from the article:

The Bribery Act 2010 (the ‘2010 Act’) received Royal Assent in April 2010 and came into force on 11 July 2011. Its 10th anniversary gives us a good opportunity to reflect upon the impact that it has had within the criminal justice system, with one eye to the future as it becomes more entrenched and even inspires other legislation. Whatever its effects, it is certainly clear that it modernised the UK’s out-dated corruption laws, which had not been updated for almost 100 years, and which clearly struggled to deal with more modern iterations of bribery and corruption.

Background to Reform

Prior to the 2010 Act, the law of bribery comprised various common law offences, including event-specific offences such as embracery [bribing a juror], attempting to bribe a privy councillor, and attempting to bribe a police constable, along with a number of statutory offences. The most significant statutes were the Public Bodies Corrupt Practices Act 1889 (the ‘1889 Act’), the Prevention of Corruption Act 1906 (the ‘1906 Act’), and the Prevention of Corruption Act 1916. A UK Government Consultation Paper in 2005 (Bribery: Reform of the Prevention of Corruption Acts and SFO Powers in Cases of Bribery of Foreign Officials) noted that the law was “fragmented and out of date and needs to be reformed.” The OECD had also been critical of the UK’s bribery and corruption laws, describing them as being “characterised by complexity and uncertainty” (OECD Phase 2 Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions).

Issues with the previous law (as highlighted by the Law Commission in its Consultation Paper, No.185, Reforming Bribery (2008)) included the following:

  • The distinction between public sector and private sector bribery: the law drew a distinction between bribery in the public and private sectors. The 1889 Act was concerned with public sector bribery (members, officers and servants of public bodies). The 1906 Act was concerned with general bribery of both public and private sectors actors. There was also a presumption of bribery in cases in which a public official and an individual seeking a public sector contract were engaged. Whether such a presumption, along with the public/private distinction, was necessary or desirable was open to question.
  • Incorrect statutory charges: Although the 1889 Act was restricted to public sector bribery, it confusingly did not cover all cases of bribery where the defendant worked in the public sector.
  • Terminology: The 1889 and 1906 Acts used different terminology.
  • Definitions: The 1906 Act noted an agent as any person “employed by or acting for another”, a definition criticised for being vague; and both the 1889 and 1906 Acts failed to define “corruptly,” a term used in both statutes.
  • Extra-territorial application: Until the Anti-Terrorism, Crime and Security Act 2001, it was not an offence for a British national or a UK-company to commit bribery abroad.

This article was published by The Barrister in their October edition. You can read the article here via pdf.

John Binns is a partner at BCL specialising in all aspects of business crime, with a particular interest in confiscation, civil recovery and money laundering under the Proceeds of Crime Act 2002 (“POCA”). His business crime experience includes representing suspects, defendants and witnesses in cases invoking allegations of bribery and corruption, fraud (including carbon credits, carousel/MTIC, land-banking, Ponzi and pyramid scheme frauds), insider trading, market abuse, price-fixing, sanctions-busting, and tax evasion. He has coordinated and undertaken corporate investigations and defended in cases brought by BEIS, the FCA, HMRC, NCA, OFT, SFO and others.

Umar Azmeh is a solicitor at BCL, specialising in business crime, financial crime, and regulatory investigations. He has significant experience of criminal investigations involving money laundering and bribery, and has worked with clients on sanctions, tax, and proceeds of crime issues. He has expertise in commercial litigation, including civil fraud with an international dimension, and particularly where there is a criminal aspect. He has also advised both corporations and individuals on potential liability under the Proceeds of Crime Act 2002, the Fraud Act 2006, and the Bribery Act 2010, which includes drafting relevant policies for corporate clients.

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