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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.
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