The new UK Bribery Act 2010 not only introduces tough
new anti-bribery laws, but creates a new corporate offence of
"failure of commercial organisations to prevent bribery"
– meaning that a company carrying on business in the UK
could be prosecuted for acts done by foreign employees, agents or
subsidiaries in other countries, and without their permission.
Unlike US and Australian laws, the new UK bribery offences
pertaining to the bribery of foreign public officials do not permit
facilitation payments. Indeed, it is not even necessary to have an
"improper purpose" to commit an offence.
The UK Bribery Act is part of the UK government's
foreign bribery strategy, launched by the Lord Chancellor Jack
Straw in January 2010. The new UK law, together with the recent
significant increases in Australian penalties for bribery of
foreign public officials, reflect an increasing level of
co-operative international enforcement of anti-corruption laws.
This means that if you haven't recently reviewed your
internal compliance measures to prevent bribery, then you should -
What are the acts by individuals that are now offences under
the Bribery Act?
Briefly, the new UK Bribery Act criminalises the
offering, promising, giving, or taking of a financial or other
advantage if the offeror intends to induce or reward a person for
improper performance of certain activities or functions. It's
also an offence if the offeror knows or believes that the
acceptance of the advantage would itself amount to improper
The sorts of activities or functions are:
any function of a public nature,
any activity connected with a business,
any activity performed in the course of a person's
any activity performed by or on behalf of a body of persons
(whether incorporated or unincorporated).
and there's an expectation that they are performed
impartially, in good faith, and by someone in a position of
It doesn't matter if
the activities or functions have no connection with the UK or
are performed outside the UK; or
the local view is that these activities or functions don't
have to be performed impartially or in good faith - only what a
reasonable person in the UK would expect (unless the local view is
enshrined in a written law).
These are only offences if the individual committing them is a
British citizen or resident (or similar), or a company incorporated
in the UK.
In this respect, the Act consolidates much of the existing UK
law in relation to bribery. However, when it comes to acts of
bribery is directed at a foreign public official the bill expands
the law in several important respects.
First, it doesn't matter whether it was done with an
improper purpose or an intention that the official exercise his or
her powers improperly. All that is required is an intent to
Second, the offence of failing to prevent these acts has
no territorial limitation.
The new corporate offence of failure to prevent bribery
Under section 7 of the Bribery Act, a commercial
organisation is guilty of failure to prevent bribery if a person
associated with the commercial organisation bribes another person
to obtain or retain business for the commercial organisation,
to obtain or retain an advantage in the conduct of business for
the commercial organisation.
It doesn't matter if the associated person is a British
citizen who could be prosecuted for the offence or not, meaning
that a company with a jurisdictional link to the UK could be
prosecuted for something that a non-British person did outside the
But who are these people? An "associated person" is a
person who performs services for or on behalf of the commercial
organisation, which means it's not limited to employees.
The defence to the new corporate offence of failure to prevent
If the commercial organisation can prove that it had in place
"adequate procedures" designed to prevent persons
associated with it from committing these acts, then it has a
defence to the charge. What these "adequate procedures"
are exactly is still unclear, although the Act says that the
Secretary of State must publish guidance about procedures that
relevant commercial organisations can put in place to prevent
persons associated with them from bribing. So far, no guidance has
been published. In this respect the UK legislation is very similar
to its Australian counterpart, which makes corporations which do
not have a "corporate culture" which prevented bribery
and corruption criminally responsible for individual conduct.
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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