In her paper, "The Bribery Act 2010 and the construction industry (or how Max Proffit went to prison)", Laura Lintott summarises the Bribery Act 2010 (the Act) and explains the main offences, related penalties and defences. She provides a vivid illustration of how an individual/company in the construction industry can be caught under the Act in the daily running of their business.
Businesses should be aware that failing to prevent bribery is a strict liability offence. The only defence available is if the company can show that it had "adequate procedures" in place to prevent bribery (section 7 of the Act). In some prosecutions, the Crown Prosecution Service (CPS) might offer settlement to a defendant via a deferred prosecution agreement (DPA) but only if the defendant had reported the offence itself and cooperated with the enforcement authorities – and even then, that offer is discretionary.
The Act came into force on 1 July 2011, more than seven years ago, and it applies as much today as it did then. In the past few years, a steady stream of companies have been caught under section 7 of the Act with serious ramifications for their businesses.
The first successful prosecution for the corporate offence of failing to prevent bribery under the Act was brought in 2018 by the CPS in R v. Skansen Interiors Ltd (Southwark Crown Court). That sentence highlights the importance of complying with the Act, particularly as the defendant, Skansen Interiors Ltd, was not offered settlement via a DPA despite self-reporting and cooperating with enforcement authorities.
There are, unfortunately, wide opportunities for bribery in the construction industry. Businesses should pay special attention to the processes involved in, for example: making facilitation payments; the provision or acceptance of corporate hospitality; tendering for public projects; tendering processes in the wider supply chain; and the negotiation of construction contracts.
To assist businesses, the Ministry of Justice published guidance on the Bribery Act 2010 on 30 March 2011 explaining and promoting proportionate anti-bribery procedures, including top level commitment, risk assessment, due diligence, communication, monitoring and reviewing.
Since Laura first published her original paper on the Act in 2012 (which was Highly Commended in the General Division of the Society of Construction Law Australia Brooking Prize for 2012), there have been no changes to the Act. The warning for construction businesses to remain vigilant in preventing bribery remains relevant.
Click here to download a pdf of the paper "The Bribery Act 2010 and the construction industry (or how Max Proffit went to prison)".
The same paper was also published in the Construction Law Journal, Sweet & Maxwell, 2019, Vol. 35 No. 2. The same has been published on the website of the Society of Construction Law Australia as a member-only resource in June 2019.
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