The UK Bribery Act, which came into force in 2011, reforms the UK Law with an intent to facilitate greater enforcement against corporations participating in public and private sector bribery. The offences for which corporations may be liable include offences of bribing and being bribed, bribing foreign public officials and the new corporate offence of failing to prevent bribery. For Nigerian businesses, the relevance of the UK bribery Act is that it has extra-territorial application.
According to the UK Bribery Act, the main offence and the offence of bribing a foreign public official have extra- territorial application. An offence is committed if either any act/omission which forms part of the offence takes place in the UK; or no act/omission took place in the UK, but the person has a close connection with the UK.
According to Richard Alderman, Director of the Serious Fraud Office” “Don’t rely on a very technical approach to the Bribery Act to try and persuade yourself that you’re outside the scope of the Act. The safe working assumption is that if you have got a UK presence in one way or another then you are within the scope of the Bribery Act. Don’t take the risk of thinking we have this clever interpretation by clever lawyers that tells us we are outside and therefore we are free to carry on bribing. That’s very unsafe.”
The offences under the act for which the extraterritorial reach are applicable are described as follows; the general bribery offence connotes directly or indirectly, offering, promising or giving, or requesting, agreeing to receive or accepting a financial or other advantage, to/from another person, intending the advantage to induce or reward someone for performing a relevant function improperly while the offence of bribery of a foreign public official (FPO) connotes directly or indirectly, offering, promising or giving a financial or other advantage, intending to influence an FPO in his capacity as an FPO, with the intention of obtaining or retaining business or a business advantage. It is noteworthy that the Act says that it doesn’t matter if the bribe is offered, promised or given directly or through a third party.
Further, unlike its United States Counterpart, the Foreign Corrupt Practices Act (FCPA), the Bribery Act does not exclude domestic bribery, private sector bribery and facilitation payments from its ambit. Also, FCPA fines are limited to $2 million but there is no maximum for a fine levied on a corporate entity under the UK law.
The guideline to the law suggests that corporate entities put in place adequate procedures to prevent bribery, and follow the following principles when adopting adequate procedures. The principles include proportionate procedures, risk assessment, top-level commitment, due diligence, communication, and monitoring and review.
In conclusion, Nigerian companies who are yet to do so need to ensure that their corporate compliance procedures take into account their risk and prevent their chance of being culpable under the UK Bribery Law