The Bribery Act 2010 (c.23), shortened as “UKBA”, is an Act of the Parliament of the United Kingdom that covers the criminal law relating to bribery. Introduced to Parliament in the Queen’s Speech in 2009 after several decades of reports and draft bills, the Act received the Royal Assent on 8 April 2010 following cross-party support. Initially scheduled to enter into force in April 2010, this was changed to 1 July 2011. The Act repeals all previous statutory and common law provisions in relation to bribery, instead replacing them with the crimes of bribery, being bribed, the bribery of foreign public officials, and the failure of a commercial organization to prevent bribery on its behalf.
The penalties for committing a crime under the Act are a maximum of 10 years’ imprisonment, along with an unlimited fine, and the potential for the confiscation of property under the Proceeds of Crime Act 2002, as well as the disqualification of directors under the Company Directors Disqualification Act 1986. The Act has a near-universal jurisdiction, allowing for the prosecution of an individual or company with links to the United Kingdom, regardless of where the crime occurred. Described as “the toughest anti-corruption legislation in the world”, concerns have been raised that the Act’s provisions criminalize behavior that is acceptable in the global market, and puts British business at a competitive disadvantage.
General bribery offenses
Sections 1 to 5 of the Act cover “general bribery offenses”. The crime of bribery is described in Section 1 as occurring when a person offers, gives or promises to give a “financial or other advantage” to another individual in exchange for “improperly” performing a “relevant function or activity”. Section 2 covers the offense of being bribed, which is defined as requesting, accepting or agreeing to accept such an advantage, in exchange for improperly performing such a function or activity. “Financial or other advantage” is not defined in the Act, but, according to Aisha Anwar and Gavin Deeprose in the Scots Law Times, “could potentially encompass items such as contracts, non-monetary gifts and offers of employment”.
The “relevant function or activity” element is explained in Section 3—it covers “any function of a public nature; any activity connected with a business, trade or profession; any activity performed in the course of a person’s employment; or any activity performed by or on behalf of a body of persons whether corporate or unincorporated”. This applies to both private and public industry, and encompasses activities performed outside the UK, even activities with no link to the country. The conditions attached are that the person performing the function could be expected to be performing it in good faith or with impartiality, or that an element of trust attaches to that person’s role.
Under Section 4, the activity will be considered to be “improperly” performed when the expectation of good faith or impartiality has been breached, or when the function has been performed in a way not expected of a person in a position of trust. Section 5 provides that the standard in deciding what would be expected is what a reasonable person in the UK might expect of a person in such a position. Where the breach has occurred in a jurisdiction outside the UK, local practises or customs should be disregarded when deciding this, unless they form part of the “written law” of the jurisdiction; “written law” is given to mean any constitution, statute or judicial opinion set down in writing. The general offences also cover situations where the mere acceptance of such an advantage would constitute improperly performing relevant functions or activities.
Bribery of foreign public officials
Bribery of foreign public officials is a distinct crime under Section 6, in line with the OECD Anti-Bribery Convention. A person will be guilty of this offense if they promise, offer or give a financial or other advantage to a foreign public official, either directly or through a third party, where such an advantage is not legitimately due. A foreign public official is defined, under Section 6(4), as ” an individual holding legislative, administrative or judicial posts or anyone carrying out a public function for a foreign country or the country’s public agencies or an official or agent of a public international organization”. The inclusion of “through a third party” is intended to prevent the use of go-betweens to avoid committing a crime, although if the written law of the country of the foreign public official allows or requires the official to accept the advantage offered, no crime will be committed.Unlike with general bribery offenses, there is no requirement to show that the public official acted improperly as a result; this is a distinction between the Act and the Anti-Bribery Convention. The offense under Section 6 only applies to the briber, and not to the official who receives or agrees to receive such a bribe.
Failure of commercial organizations to prevent bribery
Section 7 creates the “broad and innovatory offense” of the failure of commercial organizations to prevent bribery on their behalf. This applies to all commercial organizations which have business in the UK. Unlike corporate manslaughter, this does not only apply to the organization itself; individuals and employees may also be guilty. The offense is one of strict liability, with no need to prove any kind of intention or positive action. It is also one of vicarious liability; a commercial organization can be guilty of the offense if the bribery is carried out by an employee, an agent, a subsidiary, or another third-party, as found in Section 8. The location of the third-party is irrelevant to the prosecution— according to David Aaronberg and Nichola Higgins in the Archbold Review, “therefore, a German business with retail outlets in the UK which pays a bribe in Spain could, in theory at least, face prosecution in the UK”. Under Section 7(2), the commercial organization has a defense if it can show that, while bribery did take place, the commercial organization had in place “adequate procedures designed to prevent persons associated with [the organization] from undertaking such conduct”. Under the Act’s explanatory notes, the burden of proof in this situation is on the organization, with the standard of proof being “on the balance of probabilities”.
Guidance was published by the Secretary of State three months before the Act came into force. The Guidance sets out 6 principles to be followed by business. They cover such topics as Proportionate Procedures, Top-level Commitment, Risk Assessment, Due Diligence, Communication (including training) and Monitoring & Review. The one firm conclusion to be drawn from the Guidance is that every commercial organization that might be subject to the rigors of the Act needs to have a code of conduct in place that appropriately reflects the Guidance and to ensure its personnel are fully conversant with the risks and adequately trained. If it is then charged with the offense of failing to prevent bribery, it would be able to show evidence of the ‘adequate procedures’ which it will need in order to defend itself.
Prosecution and penalties
Section 10 requires the authorization of any prosecution by the director of the appropriate prosecution agency before a case can go ahead; this is a shift from the old regime, which required the consent of the Attorney General for England and Wales. Section 11 explains the penalties for individuals and companies found guilty of committing a crime. If an individual is found guilty of a bribery offense, tried as a summary offense, they may be imprisoned for up to 12 months and fined up to £5,000. Someone found guilty on indictment, however, faces up to 10 years’ imprisonment and an unlimited fine. The crime of a commercial organization failing to prevent bribery is punishable by an unlimited fine. In addition, a convicted individual or organization may be subject to a confiscation order under the Proceeds of Crime Act 2002, while a company director who is convicted may be disqualified under the Company Directors Disqualification Act 1986.
The scope of the Act’s provisions is set out in Section 12. For someone to fall within the Act’s purview, they must have either committed a crime inside the United Kingdom, or acted outside of the United Kingdom in a way which would have constituted a crime had it happened in the UK. For a prosecution in the latter case, the person must have a “close connection” to the UK, which includes being a British citizen, resident or protected person, a company incorporated in the UK, or a Scottish partnership. Section 13 provides the only defense available with the general bribery offenses—that the conduct was necessary for the proper functioning of the intelligence services or, when engaged in active service, the armed forces. Under Section 14, senior officers or directors in a company which commits a general bribery offense will also be liable for the purposes of the Act. In the case of an offense committed by a partnership, Section 15 provides that the prosecution must be brought in the name of the partnership and not in the name of any of the partners.>
Under Section 16, the Act applies to servants of the crown, while Section 17 repeals all previous common law and statutory offenses relating to bribery, replacing them with provisions of the Act. Section 18 provides that the Act applies to England and Wales, Scotland and Northern Ireland; while the separate consent of the Scottish Parliament is usually required in such cases, as is made clear in Section 19, a Legislative Consent Motion was passed on 11 February 2010, allowing for the application of the Act within Scotland.