Simone Lawson
The Bribery Act 2010 is the key piece of UK legislation governing bribery. It applies to England, Wales, Scotland and Northern Ireland and creates various criminal offences related to bribery that apply to both individuals and corporate organisations. The act defines a bribe as a financial or other advantage given or received with the intention of inducing or rewarding the improper performance of a relevant function or activity. This can include cash payments, lavish gifts, hospitality, expenses, access to assets or a favour made to a relative, friend or favoured cause. Individuals or organisations convicted of bribery offences under the act can face unlimited fines and individuals can also face up to 10 years' imprisonment.
| Characteristics | Values |
|---|---|
| Applicable legislation | Bribery Act 2010 (UKBA) |
| Applicable regions | England, Wales, Scotland, and Northern Ireland |
| Applicable offences | Section 1, 2, 6, and 7 |
| Punishment | Individuals may be liable to imprisonment for up to 10 years or a fine. Organisations may be liable for an unlimited fine. |
| Definition of a bribe | A financial or other advantage given or received with the intention of inducing or rewarding the improper performance of a relevant function or activity. |
| Relevant function or activity | A function of a public nature, connected with a business, performed in the course of a person's employment, or performed by or on behalf of a body of persons (corporate or unincorporate). |
| Expectation of function or activity | The person performing the function or activity is expected to perform it in good faith, impartially, or in a position of trust. |
| Prosecution considerations | One-off and small payments, self-reporting, remedial action, duress, and vulnerability of the person making the payment. |
| Facilitation payments | Considered bribes, but prosecutors will consider carefully before deciding to prosecute. |
| Hospitality | May amount to a bribe if given with the intention of inducing conduct that breaches the expectation of good faith, impartiality, or trust. |
| Commercial organisations | May be guilty of an offence if they do not have adequate procedures in place to prevent bribery. |
| Associated persons | Employees, agents, subsidiaries, or anyone performing services for or on behalf of the commercial organisation. |
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What You'll Learn
Offering, promising, or giving a bribe
The Bribery Act 2010 covers procedures that organisations can put in place to prevent persons associated with them from offering, promising, or giving bribes. It is essential for staff to understand the rules and obligations under this act, and employers should provide training to ensure full compliance. Failure to have adequate procedures in place to prevent bribery can result in liability for the organisation.
The definition of a "relevant function or activity" is broad and includes any function of a public nature, any activity connected with a business, any activity performed in the course of a person's employment, or any activity performed by or on behalf of a body of persons (corporate or unincorporate). It is important to note that the bribe does not have to involve cash or a monetary payment, but can also take the form of lavish gifts, hospitality, expenses, access to assets, or favours extended to relatives or friends.
Prosecutors are less likely to take action when payments are small, one-off, or made under duress, such as the threat of loss of life, limb, or liberty. Additionally, if the person making the payment was in a vulnerable position, prosecution may be less likely. However, it is crucial to understand that facilitation payments, regardless of amount, are considered bribes. This includes situations where a payment is made to expedite delivery or gain preferential access to goods or services.
Individuals found guilty of offering, promising, or giving a bribe under the Bribery Act can face imprisonment of up to 10 years, a fine, or both. Organisations may be liable for unlimited fines if they are found guilty of failing to prevent bribery by their associated persons.
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Requesting, agreeing to receive, or accepting a bribe
Firstly, a bribe can be defined as a "financial or other advantage" that is sought, received, or accepted. This advantage could be for the individual themselves or for another person. It is important to note that the advantage
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Bribery of foreign public officials
The Bribery Act 2010 applies to England, Wales, Scotland, and Northern Ireland and creates various criminal offences related to bribery that apply to both individuals and corporate organisations. It is an offence under section 6 of the Bribery Act to attempt to influence a foreign public official by offering, promising, or giving a financial or other advantage to obtain or retain business or a business advantage. This includes cases where the offer or promise is made through a third party or where the reward is given to a third party at the foreign public official's request.
The Bribery Act defines a foreign public official as someone who holds a legislative, administrative, or judicial position of any kind, whether appointed or elected, of a country or territory outside the United Kingdom. This includes individuals acting in an official capacity for or on behalf of a country or territory outside the UK or for any public agency or public enterprise of such a country or territory.
It is important to note that there is no requirement to prove that the foreign public official was being bribed to carry out their function improperly. However, the Ministry of Justice recognises that there may be an element of improper performance in many cases. Additionally, there is an exception to this offence if a foreign public official is permitted or required by local written law to be influenced by offers, promises, or gifts.
Individuals or organisations convicted of bribing a foreign public official may be liable for unlimited fines, and individuals can face up to 10 years' imprisonment. A commercial organisation may also be convicted and liable for an unlimited fine if it fails to prevent bribery by persons associated with it. However, there is a defence if the organisation can demonstrate that it had adequate procedures in place to prevent bribery.
Prosecutors are less likely to take action in cases involving small, one-off payments, self-reporting, or instances where the person making the payment was in a vulnerable position. Additionally, payments made under fear of loss of life, limb, or liberty may qualify for the common law defence of duress.
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Failure by commercial organisations to prevent bribery
The Bribery Act 2010 applies to England, Wales, Scotland and Northern Ireland, and it outlines various criminal offences related to bribery that apply to individuals and corporate organisations. The Act defines a bribe as any advantage given to influence a person in the carrying out of a function, usually connected with their work or office. The intention of the briber must be either to influence the bribee to carry out that function improperly or, with respect to non-UK public officials, to obtain a benefit or some sort of advantage or favourable treatment from that public official.
The Act also introduced strict liability for commercial organisations whose service providers (called 'associated persons') engage in bribery unless the organisation has adequate procedures in place to prevent it. Organisations should ensure they have effective anti-bribery measures in place to mitigate their risk. A commercial organisation will be liable to prosecution if a person "associated with" it bribes another person, intending to obtain or retain business or an advantage in the conduct of business for that organisation. The definition of "commercial organisation" is wide and includes companies, partnerships and other entities incorporated or formed under UK law, as well as non-UK companies and other legal entities if they carry on a business, or part of a business, in the UK.
Associated persons are those who perform services for the commercial organisation and may include employees, agents, consultants, contractors, subsidiary companies and joint venture partners. It is important to note that the organisation may be guilty of an offence and liable for an unlimited fine even if the offer, promise or giving of a reward is done through a third party and/or where the offer, promise or giving of a reward is to a third party at the foreign public official's request or agreement.
Prosecutors are less likely to take action where payments are a 'one-off' and small, which is likely to result in only a nominal penalty, or where there has been self-reporting and remedial action taken. The guidance highlights that those making payments under fear of loss of life, limb or liberty are likely to have the common law defence of duress available to them. However, loss of business may not qualify for this defence for paying bribes.
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Facilitation payments
The Bribery Act 2010 applies across the UK, including England, Wales, Scotland, and Northern Ireland, and creates various criminal offences related to bribery that apply to both individuals and organisations. Under the Act, facilitation payments are considered a form of bribery and are penalised as such. Individuals found guilty of bribery offences under the Act are liable, on summary conviction, to a term of imprisonment of up to one year, an unlimited fine, or both. In cases of conviction on indictment, individuals face up to 10 years' imprisonment, an unlimited fine, or both.
Businesses also face penalties if they fail to prevent bribery, including facilitation payments, within their organisation. A commercial organisation will be liable to prosecution if an individual associated with it makes a facilitation payment intending to obtain or retain business or a business advantage. To avoid a charge, the business must prove that it has implemented adequate procedures and taken reasonable precautions to prevent bribery.
Prosecutors may consider various factors before deciding to prosecute cases involving facilitation payments, including the size and frequency of the payments, whether the payment was a one-off, and the vulnerability of the person making the payment. Additionally, payments for legally required administrative fees or fast-track services do not constitute facilitation payments.
While facilitation payments are illegal in the UK, they are not considered illegal in some other countries, such as Australia and the United States. However, due to the difficulty in distinguishing them from bribery, many companies choose to avoid making facilitation payments.
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Frequently asked questions
A bribe is defined as a financial or other advantage given or received with the intention of influencing or rewarding the recipient to act in breach of trust. The advantage does not have to be financial and can take the form of lavish gifts, hospitality, or a favour to a friend or relative.
Under the Bribery Act, a bribe is considered a criminal offence when it is offered or received as an advantageous reward for the improper performance of a relevant function or activity. This includes any function of a public nature, any activity connected with a business, or any activity performed in the course of a person's employment.
Individuals found guilty of bribery under the Bribery Act may face imprisonment of up to 10 years, a fine, or both. Organisations may be liable for unlimited fines and can also face prosecution if they fail to prevent bribery by their associated persons.
Commercial organisations can defend themselves against accusations by proving that they had adequate procedures in place to prevent bribery. However, failure to have these procedures in place can result in liability for the organisation.
Hospitality can be considered a bribe if there is sufficient evidence to show that it was given with the intention of inducing a breach of trust or improper performance. However, reasonable and proportionate corporate hospitality is generally not considered a bribe and is recognised as a common practice in doing business.
