This policy has been introduced in response to the Bribery Act 2010 (the Act).
The Act creates four key offences:-
- Active bribery (the offence of offering to bribe another)
- Passive bribery (the offence of accepting or requesting a bribe)
- Bribery of a foreign public official
- Failing to prevent bribery (the offence by a commercial organisation, including potentially a university, of failure to prevent bribery by any person associated with it)
The maximum sentence is 10 years for individuals who commit such offences. Organisations are liable to an unlimited fine. It is expected that fines are likely to be defined with reference to an organisation's annual turnover, a method used when punishing anti-competitive conduct by organisations.
Failing to prevent bribery
The first three offences are not unexpected, and apply to individuals as opposed to organisations. What is new is the strict liability offence of failing to prevent bribery. The University can be liable for the actions of any person carrying out services on its behalf, in whatever capacity. This could include any contractors, agents or subsidiary companies.
The Act has extra-territorial reach, so the bribery does not need to take place on UK soil. Further, if organisational failures occur with the consent or connivance of any senior officers, they too could be liable for an offence under the Act as individuals.
The only defence the University would have if charged with failing to prevent bribery is the defence of 'Adequate Procedures'. In summary, this means that the University can escape or mitigate liability if it can show that it had sufficient safeguards in place throughout the institution to prevent persons associated with it from undertaking acts of bribery.
It is this element of the legislation that has the greatest potential impact. As an institution it is essential that a robust Anti-Bribery and Corruption Policy and appropriate training are put in place.