UK: The Bribery Act 2010 - How Will It Affect You?

Last Updated: 23 May 2012
Article by Rahila Rahman

Described as "the toughest bribery legislation in the world" by the Serious Fraud Office, the long awaited Bribery Act 2010 is now due to come into force on 1 July 2011 and places a greater burden on businesses than the current law on bribery.

The Act is fairly short but its far reaching scope should not be underestimated.

Current Law

The existing law on bribery is contained in a combination of statutes going as far back as the nineteenth century and of common law. The existing law is considered to be both antiquated and inadequate to deal with corruption in an increasingly global market.

The Act will repeal the existing legislation and abolish the common law offence. However, the Act will not have retrospective effect - the existing law will still be around for many years and apply to any activities occurring before the coming into force of the Act.

The New Legislation

The Act creates four offences as follows:

(a)    giving, offering or promising a bribe (active bribery)
(b)    requesting, accepting or receiving a bribe (passive bribery)
(c)    bribing a foreign public official
(d)    failure by a commercial organisation to prevent bribery by its "associates"

Active Bribery and Passive Bribery

These general offences prohibit the following:

(i)     the offer, promise or provision of  a financial or other advantage to another person with the intention of inducing that person to perform improperly a relevant function or activity or reward that person for doing so; and

(ii)     a request, agreement to receive or acceptance of a financial or other advantage with the intention that, as a consequence, a relevant function or activity should be performed improperly by the person receiving the bribe or by any other person.

The term "relevant function" includes any function of a public nature or any activity connected with a business or performed in the course of a person's employment or by or on behalf of a body of persons (whether corporate or unincorporated), where the person performing the function or activity is expected to perform it in good faith, impartially or is in a position of trust.

"Improper performance" is defined by reference to a failure to perform a relevant function or activity in breach of a relevant expectation, namely good faith, impartiality or a position of trust. When determining the level of expectation, the test is what a reasonable person in the UK would expect in relation to the performance of the function or activity. It is worth noting that the function or activity need not have any connection to the UK.

Also, for passive bribery it is not necessary for a person to have requested, agreed, received or accepted the advantage directly or through a third party and, in some cases, it does not even matter whether the person knows or believes that the performance of the function or activity will be improper.  For example, this will be the case where:

(a)    a person requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance of a relevant function or activity, regardless of whom the improper performance is carried out by; and
(b)    in anticipation or in consequence of a person ("A") requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by A, or another person at A's request or with A's assent or acquiescence.

Bribing a foreign public official

This offence is committed if the person giving the bribe intends to influence a foreign public official and intends to retain or obtain business or an advantage in the course of business, where the foreign public official is neither permitted or required by the written law applicable to the foreign public official to be influenced as such.

For the purpose of determining what is required or permitted by local laws to which a foreign public official is subject to, reference is to be made to the written law of that jurisdiction. Customs and practices of a jurisdiction that do not form part of the written law will not be taken into account.

Failure to prevent bribery

The offence of failure of commercial organisations to prevent bribery by associated persons is a new offence and has important implications for all organisations with a base in the UK.  The offence is one of strict liability and is committed if an "associated person" is guilty of either (a) active or passive bribery; or (b) bribing of a foreign public official. A commercial organisation will be vicariously liable even where the organisation was unaware of the activities by the associated person. The only defence for commercial organisations is to demonstrate that they had adequate procedures in place.

"Commercial organisation" will include any corporate or partnership incorporated under UK law which carries on a business or any other corporate or partnership, wherever incorporated, which carries on business in the UK.

The definition of "associated person" is broad and means any person who performs services for and on behalf of the commercial organisation. The Act states that the capacity in which the associated person performs its services does not matter and that an associated person will include employees, agents and subsidiaries. Importantly, the associated person does not need to have a connection to the UK for commercial organisations to be found guilty under the Act.

Adequate Procedures

It will be an absolute defence for a business charged under the new offence of failing to prevent bribery if it can demonstrate that it has "adequate procedures" in place. The meaning of "adequate procedure" has not been defined in the Act, although the government has recently published its long awaited guidance on the procedures businesses should have in place.

The guidance sets out six general principles that businesses should consider in their approach to preventing bribery.  These are:

(i)    Proportionate procedures

Commercial organisations should have procedures to prevent bribery that are proportionate to the bribery risks they face. The level of risk an organisation faces will vary depending on the size and type of organisation. Some procedures may be relevant to a certain set of employees and perhaps not as much to other employees.  

(ii)    Top-level commitment

Senior staff members (whether directors or managers) should be committed to establishing a zero-tolerance culture towards bribery across the organisation.

(iii)    Risk assessment

Commercial organisations must assess and understand the bribery risks they face and maintain documentation to this effect.

(iv)    Due diligence

Due diligence procedures should be proportionate to the risk identified. The extent of due diligence will vary for each organisation. The guidance indicates that in lower risk situations, commercial organisations may determine that there is no need to conduct much in the way of due diligence, while in higher risk situations, due diligence can include conducting direct interrogative enquiries, indirect investigations or general research on associated persons.

(v)    Communication (including training)

Commercial organisations should ensure that anti-bribery policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training. Such communication and training should cover areas such as decision making, financial control, hospitality and promotional expenditure, charitable and political donations and penalties for breach of the rules.

(vi)    Monitoring and review

The bribery risks an organisation faces can change over time. Commercial organisations must therefore institute monitoring and review mechanisms to ensure compliance with the policies and procedures and identify any issues as they arise.

As well as the above six principles, there are numerous other actions organisations can legitimately take to prevent or mitigate the risk of bribery, such as:

  • inserting provisions into employment contracts and terms and conditions dealing with bribery
  • having controlled bookkeeping, auditing and approval of expenditure
  • procedures for disclosure of information on all transactions
  • sanctions for breaching the organisation's bribery rules
  • whistle blowing procedures

As the guidance points out, it is not a case of one size fits all. Businesses are encouraged to carry out their due diligence now and ensure they have adequate procedures in place to deter bribery. Given the wide definition of "associated person" (which can include contractors and suppliers if performing services on behalf of a commercial organisation), it is important that any due diligence carried out and procedures implemented are effective and proportionate to the risks identified.

Corporate Hospitality

Before the publication of the guidance there was much speculation about whether corporate hospitality may fall within the remit of the Act. Much to the relief of many organisations, the Ministry of Justice has recently confirmed that hospitality is not prohibited by the Act.  

As well as clarifying that the offering of tickets to sporting events to cement good relations or enhance knowledge in the organisation's field is not an offence (so long as it is reasonable or proportionate), the guidance explains that in deciding whether or not to prosecute, the Director of Public Prosecutions or the Director of the Serious Fraud Office must consider whether a prosecution is in the public interest.

Indeed in the run up to the London 2012 Olympics Games and with tickets costing as much as £2,000, the guidance brings some relief to those who have been lucky in the draw for tickets at the Olympics, especially amongst the many businesses who consider such sporting events as part and parcel of their marketing and public relations agenda.

Businesses should still, however, err on the side of caution when deciding whether to give away tickets for the Olympics or any other prestigious event. This is on the basis that the government does acknowledge that such expenditure can amount to bribery, if there is an intention to gain a financial or other advantage.

Facilitation Payments

Unlike the US Foreign Corrupt Practices Act, which makes an exception for small bribes (known as "facilitation payments") to be paid to officials to speed up government processes, the Act makes no such exception and any payments for that purpose, no matter how big or small or whether accepted under local custom, will be an offence.

Thus, businesses and their associated persons should be aware that the fact that an action may be permissible in another jurisdiction does not act as a defence to the prohibitions under UK law, especially in light of the wide territorial scope of the Act (see below).


The consequences of being found guilty under the Act are potentially severe. The maximum term of imprisonment has been increased from seven years (under the current law) to ten years and both businesses and individuals can face an unlimited fine.


The Act's territorial application is wide. Unlike the existing law, its scope is not restricted to public officials but extends to private organisations as well as individuals. Senior officers and managers can be held liable for a company's involvement in bribery if they consented to or connived in the offence.

Non-UK businesses are also caught under the Act if they have any business activity in the UK. The Act goes as far as applying to any person with a "close connection" to the UK.

In addition, the Act is not limited to offences committed in the UK but extends to bribery activities committed anywhere in the world by UK businesses or individuals if that activity would amount to an offence in the UK.


The Act's adoption of a zero-tolerance approach, its wide territorial scope and the absence of any exceptions to the offences only serve to highlight that businesses cannot turn a blind eye to this new piece of legislation.

A conviction under the Act may have a devastating effect for a business, particularly for those relying on public sector contracts. For example, under Article 45 of the EU Public Sector Directive anyone found guilty of corruption may be prevented from participating in such public sector contracts. All should also remain aware of the possibility of unlimited financial penalties.

Businesses need to assess their approach to anti-corruption activities and adopt adequate procedures to ensure they do not fall foul of the provisions of the Act.

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.


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.