Bribery Act Offences

The Bribery & Corruption Act and Offences Explained

The Bribery Act 2010 is a critical piece of legislation in the United Kingdom that addresses various forms of bribery and corruption. This act is pivotal in regulating the conduct of business and ensuring that commercial organisations maintain high ethical standards.

This article delves into the key provisions of the UK Bribery Act 2010, focusing on active bribery, bribery offences, and the implications for businesses and commercial organisations. Additionally, we will explore how Twelve Tabulae provides crucial support for organisations facing Bribery Act offences by helping them build a robust defence.

What are the four main offences of the UK Bribery Act 2010?

The Bribery Act 2010 consolidates and simplifies previous bribery legislation, creating a robust framework to combat bribery and corruption. It outlines four primary offences:

1. Bribing Another Person (Active Bribery): This occurs when a person offers, promises, or gives a financial or other advantage to another individual with the intent to induce or reward improper performance of a relevant function or activity.
2. Being Bribed (Passive Bribery): This involves receiving, agreeing to receive, or accepting a financial or other advantage as a reward for performing a relevant function or activity improperly.
3. Bribery of Foreign Public Officials: This is specific to offering, promising, or giving a financial or other advantage to a foreign public official to influence them in their official capacity and secure a business advantage.
4. Corporate Offence of Failing to Prevent Bribery: Commercial organisations are liable if they fail to prevent persons associated with them from bribing another person on their behalf.

Bribery Risks in Various Sectors

Bribery risks vary across different sectors, with certain industries being more susceptible due to their nature of operations. For instance, the construction, pharmaceuticals, defence sectors and some other private sectors often face higher risks due to the extensive interaction with public officials and the complexity of regulatory environments.

These sectors should implement a robust Bribery Policy including anti-bribery procedures that align with government outlines. This includes creating guidelines for gifts and entertainment, facilitation payments, and promotional expenditure.

Adequate Procedures for Prevention

One of the critical aspects of the Bribery Act 2010 is the defence of having adequate procedures in place to prevent bribery. The government has provided guidance on what constitutes adequate procedures to avoid Bribery Act offences, which include:

• Proportionate Procedures: Policies and procedures should be proportionate to the risks faced by the organisation.
• Top-Level Commitment: Senior management must be committed to preventing bribery.
• Risk Assessment: Organisations should conduct regular risk assessments to identify potential bribery risks.
• Due Diligence: Firms must perform due diligence on persons performing services on their behalf.
• Communication and Training: Clear communication and training on bribery policies and procedures are essential.
• Monitoring and Review: Regular monitoring and review of anti-bribery measures to ensure effectiveness.

Penalties for Bribery Offences

The Bribery Act 2010 sets out stringent penalties for bribery offences, including unlimited fines for organisations and up to 10 years’ imprisonment for individuals. The act also introduces strict liability for companies, meaning that firms can be held accountable for failing to prevent bribery even if they were unaware of the corrupt practices.

The Role of Prosecutors and Government Guidance

The enforcement of the Bribery Act 2010 is supported by joint prosecution guidance from the Crown Prosecution Service and the Serious Fraud Office.

This guidance outlines the criteria for prosecuting bribery offences, emphasising the public interest in combating corruption.

Organisations must stay informed with the latest government guidance and legislation to ensure their compliance measures remain effective.

FCA Investigations: Ensuring Compliance and Integrity

The Bribery Act 2010 plays a pivotal role in maintaining the integrity of financial services, especially in relation to the Financial Conduct Authority (FCA) investigations. The FCA, as the regulator of financial markets, conducts rigorous investigations to ensure firms comply with these requirements.

Non-compliance can lead to severe penalties, including substantial fines and criminal prosecution. The FCA’s investigative powers are critical in upholding the standards set by the Bribery Act, ensuring that financial institutions operate transparently and ethically, thereby protecting the interests of consumers and maintaining market confidence.

How Twelve Tabulae Can Help

Twelve Tabulae offers comprehensive solutions for organisations seeking to comply with the Bribery Act 2010 and mitigate bribery risks including facilitating internal investigations and assisting in the reporting of any suspected bribery offences, ensuring prompt action is taken.

Twelve Tabulae enables firms to identify and assess commercial bribery risks specific to their operations. Despite best efforts, there are occasions when legal professionals or firms may face Bribery Act offence allegations.

In such cases, it is crucial to understand the available defences under UK law. With access to our expert legal advice, organisations can navigate complex bribery legislation and ensure their compliance measures are up to date.

What is the Defence for Bribery Act Offences?

Defences to bribery charges under the Bribery Act can vary depending on the nature of the offence and the specific circumstances of the case. The Bribery Act focuses on the following types of offences: bribing another person, being bribed, and failing to prevent bribery by an organisation. Here are the key defences typically available for Bribery Act offences:

Adequate Procedures defence (for Companies)

• For organisations facing charges of failing to prevent bribery, a statutory defence exists if the organisation can demonstrate that it had adequate procedures in place to prevent bribery.
• This defence requires showing that the organisation implemented anti-bribery policies, employee training, risk assessments, and compliance programs that meet the standards set by the law. The burden is on the company to prove that these measures were sufficient to prevent bribery from occurring within its operations.

Lack of Intent or Knowledge

• A defence to bribery is the argument that the accused did not have the necessary intent to bribe or be bribed. Bribery offences generally require proof that the individual or entity intended to induce improper conduct in exchange for something of value.
• Similarly, if an individual or company can show they were not aware that an advantage was being offered, promised, or given to influence a decision or action, this could be a valid defence. For example, if an individual made a payment without knowing it constituted a bribe or was unaware of the improper nature of the recipient’s actions, this could be grounds for defence.

Duress or Coercion

• If the accused can prove that they were compelled to engage in bribery under the threat of harm or coercion, duress can serve as a defence. This means the person committed the offence because they were forced to do so and had no reasonable way to avoid the criminal conduct.

Reasonable Hospitality and Promotional Expenses

• The Bribery Act does not criminalise all forms of corporate hospitality or promotional expenses. If the accused can show that any gifts, hospitality, or entertainment were reasonable and proportionate in the context of normal business practices, this may provide a defence.
• This could include customary hospitality that is intended to maintain business relationships, as long as it does not amount to an attempt to influence someone in an improper manner.

Entrapment

• In some cases, the accused might argue that they were entrapped by law enforcement officials or other agents who induced or encouraged them to commit bribery when they would not have done so otherwise.

Lack of Evidence

• As with all criminal offences, the prosecution must prove all elements of the bribery offence beyond a reasonable doubt. A common defence is challenging the sufficiency of the evidence or the credibility of witnesses to argue that the prosecution has failed to meet this burden.

Conduct Outside of Jurisdiction (for Foreign Offences)

• The Bribery Act has extraterritorial reach, meaning it applies to acts of bribery committed abroad by UK entities or persons. However, if the accused can demonstrate that the act occurred outside the UK and is not covered by the extraterritorial provisions of the law, this could be used as a defence. This is often relevant in cases of alleged bribery in international business dealings.

These defences depend on the specifics of the case, and legal advice is crucial in determining the most appropriate defence strategy. Organisations, in particular, should ensure they have robust anti-bribery measures in place to avoid liability.

Contact Us for Assistance with Bribery Act Offences

The Bribery Act 2010 represents a significant step in the fight against bribery and corruption, imposing stringent obligations on businesses and commercial organisations. Adequate procedures, risk assessment, and a strong commitment to ethical conduct are essential in preventing bribery.

By leveraging Twelve Tabulae’s comprehensive solutions, firms can safeguard their reputation, avoid severe penalties, and contribute to the broader effort of eradicating bribery and corruption in business practices. Contact us today to ensure the best advice and legal representation.

Stephen Vullo KC

King’s Counsel // Criminal Barrister // Head of Criminal Defence and Individual Conflict