UK: Bribery Offences

Last Updated: 21 August 2019
Article by DLA Piper

1. What is the legal framework governing bribery in the UK?

  • The Bribery Act 2010 (UKBA) is the key piece of UK legislation governing bribery. It applies to conduct occurring from the implementation date of July 1, 2011. Older conduct occurring entirely before that date will be assessed by reference to the common law and a series of complex and overlapping pieces of legislation.

2. What constitutes a bribe?

  • A bribe is defined under the UKBA as a financial or other advantage given or received etc., with the intention of inducing or rewarding the improper performance of a relevant function or activity. 
  • A relevant function or activity is one which is a function of a public nature, is connected with a business, is performed in the course of a person's employment, or is an activity performed by or on behalf of a body of persons (whether corporate or unincorporate) and the person performing the function or activity (i) is expected to perform it in good faith (ii) is expected to perform it impartially or (iii) is in a position of trust by virtue of performing it.

3. What are the principal offences under this legal framework?

  • Offering, promising, or giving of a bribe to another person (section 1); 
  • Requesting, agreeing to receive, or accepting a bribe (section 2); 
  • Bribery of a foreign (non-UK) public official (section 6); and 
  • Failure by commercial organizations to prevent bribery by their associated persons* committed with the intention of obtaining or retaining business or an advantage in the conduct of business for the commercial organization (section 7). 

    • *For the purpose of section 7, a person is associated with a commercial organization if (disregarding any bribe under consideration) they are a person who performs services for the commercial organization.

4. What is the jurisdictional reach of the legal framework?

  • For the bribery offences under sections 1, 2 or 6 UKBA, the UK authorities may take jurisdiction where any act or omission which forms part of the offence takes place in the UK, or where a person or entity with a "close connection" to the UK takes part in the offence. 

    • For companies, "close connection" means being incorporated in the UK, whereas for individuals, "close connection" means being a British citizen or ordinarily resident in the UK, among other things. 
  • In relation to section 7, any commercial organization which is (i) incorporated in the UK and carries on business there or elsewhere or (ii) which is incorporated elsewhere but carries on business or part of a business in the UK, will be subject to the offence. Bribery by a person of any nationality or citizenship, anywhere in the world, is capable of being caught by this section of the UKBA, provided the bribe payer is associated with the commercial organization and the bribe is paid to obtain or retain business or an advantage in the conduct of business for the commercial organization.

5. Who may be liable for bribery? (public officials, private individuals, legal entities etc.)

  • Private individuals, public officials and the legal entity concerned can be prosecuted for bribery offences under sections 1, 2 or 6 UKBA. 
  • A company can be held liable under the "identification principle" if a "directing mind and will," typically a senior person in the company (such as a director), commits a bribery offence under sections 1, 2 or 6 UKBA. 
  • A company or partnership may be liable for failing to prevent bribery under section 7. Section 7 is a strict liability offence and the relevant commercial organization need not even know that the bribery has taken place in order for it to be liable.

6. Can a parent company be liable for its subsidiary's involvement in bribery?

  • Yes, if the subsidiary is a person associated with the parent company for the purposes of section 7. An offence will only be committed if the subsidiary is a person who performs services for the parent company and intended, when paying the bribe, to obtain or retain business or an advantage in the conduct of business for the parent company. This is not to be assumed and will depend on the circumstances of each case.

7. Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes?

  • Yes, provided they meet the criteria, facilitation payments are considered bribery, no matter how small the amount.

8. Does the legal framework restrict political and charitable contributions?

  • A political or charitable contribution could be considered a bribe if it is given or received with the intention of inducing a person to act improperly, or as a reward for having done so. 
  • Political contributions to non-UK public officials will be considered bribes if they constitute bribes paid with the intention of influencing the official in their capacity as such and with the intention of obtaining or retaining business or an advantage in the conduct of business.

9. Does the legal framework place restrictions on corporate hospitality?

  • The UKBA makes no express provisions with regard to corporate hospitality and any financial or other advantage given in that context would fall to be assessed by reference to the provisions described in this note. 
  • Whether hospitality amounts to a bribe would be assessed on the basis of whether there was sufficient evidence to show that it was given with the intention of inducing conduct that amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust. This would be determined on the basis of what a reasonable person in the UK thought. -
  • Guidance issued by the UK Ministry of Justice makes it clear that the UKBA does not criminalize reasonable and proportionate corporate hospitality that is designed to improve the image of a corporation or establish cordial relationships with its customers.

10. Are there any defenses for bribery offences?

  • There are no specific statutory defenses to charges under sections 1, 2 or 6. 
  • It is a defense for a commercial organization charged with the offence of failing to prevent bribery under section 7 to prove that it has "adequate procedures" in place to prevent bribery. 
  • The UKBA does not define what will be considered "adequate procedures," but official UK Ministry of Justice guidance states that the adequacy of a commercial organization's procedures will be assessed by reference to six key compliance principles, including risk assessment, proportionate procedures, top level commitment, due diligence, communication and training, and monitoring and review. 
  • The common law defense of duress may be available where individuals are left with no alternative but to make payments in order to protect against loss of life, limb or liberty.

11. What are the key regulatory or enforcement bodies with regard to bribery?

  • The Serious Fraud Office (SFO) is the primary agent in the UK for investigating and prosecuting cases of overseas corruption. The SFO typically investigates suspected crimes concerning values of GBP1 million or more. 
  • The Crown Prosecution Service prosecutes bribery offences investigated by the police, committed either overseas or in England and Wales.
  • The Crown Office and Procurator Fiscal Service (COPFS) prosecutes bribery offences in Scotland. 
  • The Public Prosecution Office prosecutes bribery offences in Northern Ireland.

12. What are the legal consequences of being found guilty of bribery offences?

  • Individuals face up to ten years' imprisonment and/or an unlimited fine on conviction.
  • Companies can receive an unlimited fine. 
  • An individual and/or company may also face confiscation of criminal property (i.e. the proceeds of crime) arising from the offence, which can include the revenue attributable to any contract won through bribery, not just the value of the bribe paid.
  • A director convicted of a bribery offence is likely to be disqualified from holding a position as a director for up to 15 years. 
  • Companies convicted of bribery offences may also face debarment from public procurement contracts under the EU Public Procurement Directive.

13. Are deferred prosecution agreements (DPAs) or other similar settlement mechanisms available?

  • Yes, bribery offences are capable of being settled by way of a DPA. They may be offered by the prosecutor to a company, partnership or unincorporated association, but they are not offered to individuals. 
  • If a DPA is offered and accepted, and provided all conditions of the DPA are met, the prosecutor agrees not to pursue a prosecution against the entity concerned. 
  • Both corporate entities and individuals can enter into plea discussions with the prosecutor, where they agree to plead guilty to an agreed charge in anticipation of receiving more lenient treatment. While the accused and the prosecutor may discuss what they believe an appropriate penalty may be, it will be for the court to make that decision.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Nishimura & Asahi
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Nishimura & Asahi
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions