British law on corporate bribery

Author:Jonathan Mukwiri
Position:Durham Law School, Durham University, Durham, UK
Pages:16-27
SUMMARY

Purpose - This paper aims to assess the effectiveness of the Bribery Act 2010 in curbing corporate bribery. Design/methodology/approach - The paper takes a doctrinal focus in assessing UK bribery law using both primary and secondary sources. Findings - This paper finds that the effectiveness of the ... (see full summary)

 
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British law on corporate bribery
Jonathan Mukwiri
Durham Law School, Durham University, Durham, UK
Abstract
Purpose – This paper aims to assess the effectiveness of the Bribery Act 2010 in curbing corporate
bribery.
Design/methodology/approach – The paper takes a doctrinal focus in assessing UK bribery law
using both primary and secondary sources.
Findings – This paper nds that the effectiveness of the Bribery Act 2010 in curbing bribery lies in its
approach of changing the basis for corporate criminal liability from focusing on the guilt of personnel
within the company to focusing on the quality of the system governing the activities of the company.
Companies have to address the risks of bribery or risk facing liability for failure to prevent bribery. With
its regulatory approach to corporate liability, coupled with its extraterritorial reach, the Bribery Act is
likely to change business cultures that facilitate bribery, thereby proving an effective law to corporate
bribes.
Originality/value – This paper highlights the deciency of earlier laws in tackling corporate bribery,
examines the crime of bribery from a company law perspective and argues that the regulatory strategy
in the Bribery Act is likely to be an effective tool against bribery.
Keywords Corruption, Commercial fraud, Corporate bribery, Corporate crimes
Paper type Research paper
1. Introduction
Bribery is the making of a payment or giving a reward to a person in ofce or a position
of power to induce them to act in a corrupt manner for the benet of the person making
the payment or giving the reward. Bribery as a facet of commercial fraud has come to the
forefront of the international legal scene during the past decade. Bribery attracts the
application of a vast range of criminal and civil liability rules. This paper is concerned
with the UK law, the Bribery Act 2010 (“BA”), in dealing with bribery. For the BA to
apply, the person bribed must be performing a relevant function or activity, to which
they are either in a position of trust, or expected to perform in good faith, or expected to
perform impartially.
One problem in curbing bribery in the corporate world has always been on how to
hold the company as an entity liable for bribery. This is because compared to a natural
person who has a mind to carry out criminal acts, the company, being an articial entity,
has no mind of its own. To overcome this problem, the law developed a doctrine of
attribution – where acts of senior ofcers of the company are attributed to the company.
In Tesco Supermarket Ltd v. Nattrass ([1972] AC 153 at 170), Lord Reid said that the
person acting for the company is an embodiment of the company, and his mind is
the mind of the company, such that if it is a guilty mind, then that guilt is the guilt of the
company. However, the rules on corporate attribution depend on involvement of senior
ofcers of the company, and are decient where only junior ofcers are involved in the
relevant criminal acts – the BA goes beyond attribution.
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1359-0790.htm
JFC
22,1
16
Journalof Financial Crime
Vol.22 No. 1, 2015
pp.16-27
©Emerald Group Publishing Limited
1359-0790
DOI 10.1108/JFC-12-2013-0072

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