The Bribery Act 2010 ('the Act') came into force on 1 July 2011. The Act provides a modern legal framework to combat bribery in the UK and internationally, however, it also impacts upon Jersey and Guernsey businesses.
In addition to the offences of offering and accepting bribes, the Act imposes a positive obligation on organisations to take steps to prevent bribery. The new offence applies to any 'relevant commercial organisation' which fails to prevent 'associated persons' from committing bribery.
Under the Act, bribery offences which are committed outside the UK may be prosecuted in the UK if the person offering or accepting the bribe has a 'close connection' to the United Kingdom. A 'close connection' includes being a British citizen, British Overseas Territories Citizen or a British National, which means that many individuals resident in Jersey or Guernsey are subject to the Act as well as the equivalent Laws in each Island.
The definition of a 'relevant commercial organisation' includes companies and partnerships registered in the UK, however, it also includes non-UK (i.e. Jersey and Guernsey) companies and partnerships which carry on a business, or part of a business, in any part of the UK. An 'associated person' is someone who performs services for that organisation whether as employee, agent or subsidiary and is thus a wide definition.
The phrase, 'part of a business', is not defined in the Act, however, guidance issued by the Ministry of Justice recommends a common sense approach and indicates that organisations that do not have a 'demonstrable business presence' in the UK will not be caught.
Consideration needs to be given to the following structures as they may be affected by the Act:
- UK subsidiary
- UK listing
- Administration of UK entities
- Portfolio companies
- UK property
Organisations in the Channel Islands which have any business connection with the UK will need to consider whether that connection might amount to a 'demonstrable business presence'. If so, that organisation would be well advised to establish UK compliant anti-bribery policies and procedures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.