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By Nigel Boardman

The new UK Bribery Act 2010 (“the Bribery Act”) came into force on 1 July 2011, and, according to the guidance issued by the UK Government (“the Government Guidance”; see The Bribery Act 2010: Guidance), is intended to contribute to wider international efforts to combat bribery.

While targeting all forms of bribery, the Bribery Act has significant implications for commercial organisations. In addition to the general offences of bribing another (section 1) and being bribed (section 2) (both of which may be committed by a company), the Bribery Act created two offences which target commercial bribery: under section 6, it is an offence to bribe a foreign public official with the intention of obtaining or retaining business or a business advantage; and section 7 makes it an offence for a “relevant commercial organisation” to fail to prevent an “associated person” from bribing another with the intention of obtaining or retaining business or a business advantage for the organisation.

Importantly, the Bribery Act has extra-territorial effect. Liability is imposed irrespective of whether the act or omission which forms part of the offence took place in the UK or elsewhere. Furthermore, the provisions of section 7 are not limited to companies and partnerships which are incorporated or formed in the UK, but extend to foreign companies and partnerships which carry on a business, or any part of a business, in any part of the UK.

The consequences of conviction for an offence under the Bribery Act are severe, and may include the payment of unlimited fines, debarment from EU government contracts and (for individuals) imprisonment for up to 14 years.

In his introduction to the Government Guidance, the UK Secretary of State for Justice, Kenneth Clarke, states that the Bribery Act’s provisions are aimed at “making life difficult for the mavericks responsible for corruption, not unduly burdening the vast majority of decent, law-abiding firms.” Nevertheless, any organisation which considers that it may be a “relevant commercial organisation” for the purposes of the Bribery Act would be well-advised to introduce internal anti-bribery procedures. If nothing else, the existence within an organisation of adequate procedures designed to combat bribery may serve as a defence to liability under section 7, which is otherwise strict.

The Government Guidance is focussed, in large part, on advising organisations on appropriate anti-bribery procedures. It expounds six key principles which are not prescriptive, but which, it is suggested, should form the basis of any business’ anti-bribery policy.

A rigorous anti-bribery policy, devised in accordance with the Government Guidance, will be imperative for those participating in M&A transactions, which can present considerable risks from bribery. Such transactions generally result in a commercial organisation acquiring new associated persons whose conduct may expose the acquirer to liability under the Bribery Act. In addition, joint venture partners are likely to fall within the meaning of “associated persons”, and thus each participant in the venture could be prosecuted for an offence committed by its partner.

As part of such a policy, due diligence should be carried out throughout the M&A procedure, in which the risks of bribery are identified and addressed, and parties to transactions may wish to negotiate additional contractual protections in the form of warranties and indemnities to reduce their exposure to liability under the Bribery Act for the conduct of their associates.

Clearly the nature and extent of an organisation’s exposure to bribery-related offences will depend on the form and circumstances of the deal in question. By way of example, an organisation should be cautious in respect of transactions in a country in which there is a high level of co

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By Simon McKay

In 1928 the iconic United States Supreme Court Justices Holmes and Brandeis dissented in a judgment that ruled the product of telephone conversations derived from “wiretapping” admissible. With characteristic eloquence, Mr Justice Brandeis held that “the confined criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw”. The judges could be forgiven for thinking that, at least in terms of the English law, eighty years on, things haven’t changed much.

There is a connection between the phone hacking row, which appears to be the preserve of celebrities who fear their calls may have been listened into and the changes to control orders, inelegantly re-named Terrorism Prevention and Investigatory Measures. On the one hand, there is a gaggle of media lawyers and their clients complaining that the Metropolitan Police has failed to take action against individuals eavesdropping on the most private of conversations and on the other the same material is secretly relied upon by the State to confine individuals, who have not been convicted of any offence, to effective house arrest and to impose other Orwellian sanctions. The apparent juxtaposition becomes manifest; the police and agencies rely on the material to counter terrorism, yet appear impotent in terms of investigating allegations of what is given the seemingly neutral term of phone hacking.

There needs to be some attempt to de-mystify what is meant by phone hacking, sometimes referred to as phone tapping. It is clear that practically what is meant is eavesdropping on voicemail messages.

Previously the police have asserted they could not rely on the evidence provided on the ground that it is not admissible. This is a reference to a legal provision in the Regulation of Investigatory Powers Act 2000 that prohibits the use of intercept product in court proceedings. However, it has been misunderstood. The prohibition largely relates to product of intercept warrants that the State obtains to protect national security and investigate other threats as well as serious crime – this is why terror suspects aren’t prosecuted in the criminal courts – the intelligence implicating them cannot be used for this purpose. It expressly does not apply where an illegal interception has occurred.

But is a third party listening to a voicemail an interception? The simple answer is that it might be, particularly if it has not been listened to (if it is, it is a criminal offence) but if it is not, it is almost certainly an offence under the Computer Misuse Act 1990. Where such offences may have been committed there is no question that the incident and evidence of interception or hacking is admissible and capable of being used by the police. Even if there was an argument to the contrary, the consent of the “victim” alleviates any remaining difficulty concerning the issue (if an individual consents to their calls being intercepted the prohibition on admissibility no longer applies).

To fair to the police, the highest courts in the land have found the question of what may amount to an interception “particularly puzzling” and the legislation “difficult to understand”. It is almost impenetrable but that is not really any excuse.

Add to this the fact that the law in this area is under review (again). A cynic could muse what all the fuss is about; surely the simplest thing would be to make the product of intercept admissible, even i