UK: The Bribery Act 2010: Briefing and Guidance

Last Updated: 26 October 2010
Article by Andrew Ottley and Chris Jefferis

The Bribery Act 2010 comes into force in April 2011 against the background of increasing international pressure for a concerted crackdown on bribery and corruption, exemplified by the OECD Convention on Combating Bribery of Foreign Public Officials, to which the UK signed up in 1998, and the judicial view that "There can be no doubt that corruption of foreign government officials or foreign government ministers is at the top end of serious corporate offending." While bribery is a crime at common law, and also under various statutes from the late nineteenth and early twentieth centuries, the Bribery Act significantly extends the range of current UK offences.

Its effect is to demand a culture change, in which no UK business any longer regards the payment of bribes in certain jurisdictions as a regrettable fact of life, but would forego business rather than pay a bribe. Indeed, in a manner reminiscent of the money laundering legislation, it effectively compels businesses to become self-policing. Going beyond, for example, the US Foreign Corrupt Practices Act, it has been said to set a new "gold standard" in anti bribery legislation.

New offences

One key innovation is the introduction of the offence of "Failure of commercial organisations to prevent bribery". The offence is committed if a person "associated with" a commercial organisation bribes another intending to obtain or retain business, or an advantage in the conduct of business, for the organisation (irrespective of whether the organisation collectively has any knowledge of the bribe). A person is "associated with" a commercial organisation if he carries out services for it, or on its behalf. The obvious examples are employees and agents but the definition is elastic and each case will turn on its own facts.

The only defence – apart from contesting the facts – is for the organisation to show that it had in place "adequate procedures" designed to prevent associated persons committing bribery. It is this provision which effectively obliges businesses to adopt anti bribery procedures.

It is therefore vital to understand what constitutes a bribe, and the Act provides a modern definition: it is a financial or other advantage intended to induce or reward the "improper performance" of a person's function or activity where, very broadly, any personal benefit to the recipient could create a conflict between his own interests and the interests of those he is supposed to be serving. Improper performance is anything done in breach of the expectations of good faith and impartiality which a reasonable person in the UK would have.

The Act gives the UK courts jurisdiction over bribery committed anywhere in the world provided that the alleged offender has a "close connection" with the UK and the Act expressly excludes any appeal to local custom or practice (in, for example, a country where backhanders are accepted as the norm) by way of defence.

The Act's second key innovation is the introduction of the separate offence of "bribing a Foreign Public Official." This offence is committed where a person offers or provides a financial or other advantage intending to influence the foreign public official in that capacity and to obtain or retain business, or an advantage in the conduct of business (unless the Foreign Public Official is permitted or required by the local written law to be influenced by the inducement). This is a stringent provision, as the offence can be committed without there being any intention to induce improper performance.

Zero tolerance

The Act's zero tolerance approach has given rise to a number of concerns. One major concern is that corporate hospitality, entertainment and gifts might be alleged to constitute financial or other advantages intended to induce or reward the improper performance of the recipients' functions. Another is that, as the legislators acknowledge, the offence of bribing a Foreign Public Official catches facilitation payments – payments made to officials to ensure that they perform, or perform more quickly, steps which they are in fact under a duty to carry out, and which are often extorted by the officials themselves.

Adequate procedures

Over-arching everything is the requirement to institute adequate procedures as a protection against corporate liability. The government (as required by the Act) is to issue guidelines but the draft already available indicates that these will be high level and outcome focussed; each business will need to work out for itself what is required, starting with an assessment of the bribery and corruption risks it faces. The procedures will have to deal with matters such as hospitality and gifts and facilitation payments, as well as due diligence on third party agents and others, and will need to be implemented from the top down.

Failure to take these steps will place businesses at severe risk, as the penalty for a corporate offence is an unlimited fine and the indications are that the courts will be prepared to consider fining a guilty company into extinction if it is perceived to represent an ongoing corruption risk.

What steps should you be taking?

The bottom line is that all commercial organisations should take immediate steps to implement anti-bribery policies. What does this mean in practice?

  • Risk assessment

The first step is to carry out a risk assessment of the business. You will need to consider the territories and industry sectors in which your organisation operates - the risk of corruption will be higher in some than others – and the types of transaction in which you engage. Areas to watch out for include the use of political donations or charitable contributions, information brokering and offsets.

  • Top level commitment

It is important to encourage top down responsibility for establishing a culture whereby bribery is unacceptable practice. It is worth noting here that if a bribery offence is proved to have been committed by an organisation with the consent or connivance of a senior officer then s/he is guilty of the offence as well as the organisation.

  • Due diligence

It is essential, because of the associated persons risk, to know your contractor, especially the agent who works on your behalf. This means that an appropriate degree of due diligence will have to be carried out on agents, joint venturers and even suppliers, not only to establish their track record but also whether they too maintain acceptable anti-bribery procedures. Due diligence must also be conducted internally. All money held by a company should be accounted for; bribery is typically paid for out of 'slush funds' which are not accounted for in a firm's books and records. No one individual should have sole control of a payment transaction from start to finish. Anyone authorising payment needs to be trained to look out for tell tale signs of bribery on the part of agents, for example invoices for work that is ill defined, and therefore covers a multitude of sins, or for amounts which are excessivefor the work involved.

  • Clear, practical and accessible policies and procedures

Anti-bribery policies and procedures must be embedded in all an employer's dealings with its employees. It may begin at the recruitment stage for example, if you operate in an area where there is a risk of corruption in the recruitment process. It will certainly involve training – which means far more than that the employee has merely read and signed the policy – and monitoring to ensure that it has been implemented.

Just as the procedures will place certain demands on employees, so they need support: for example training and support in anti extortion strategies to deal with the entry fee, the threat of arrest, or whatever it might be. Likewise there needs to be a clear policy statement that employees' careers will not suffer if they forego business because they will not bribe; or indeed will not suffer, but rather be supported, if they blow the whistle.

And where bribery is reported, the procedures will include a response plan; there will be an internal reporting chain leading to, possibly, external reporting. For obvious reasons, businesses are encouraged to self report instances of bribery which they uncover, on the basis that a constructive engagement with the authorities will be much better in the long run than a cover up and subsequent discovery.

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

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

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.