Click Questions to see example responses, some of which include embedded links to reference sources.
To access the Bribery Act 2010 and Explanatory Notes - 'Click Here'
To see Guidance published by the Ministry of Justice about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing (section 9 of the Bribery Act 2010) – click ('Guidance'):
UK Finance is the collective voice for the banking and finance industry. In support of anti-bribery and corruption linked to public officials, UK Finance published guidance from an industry perspective on a practical and risk-based definition of public officials for the purposes of anti-bribery and corruption compliance:
Section 7 of the Bribery Act 2010 is particularly relevant to understand the defence available to a commercial organisation on the offence linked to ‘Failure of a commercial organisation to prevent bribery’. The Guidance states “… The commercial organisation will have a full defence if it can show that despite a particular case of bribery it nevertheless had adequate procedures in place to prevent persons associated with it from bribing. In accordance with established case law, the standard of proof which the commercial organisation would need to discharge in order to prove the defence, in the event it was prosecuted, is the balance of probabilities.”
The short answer is 'Yes'. A commercial organisation can be liable if a person ‘associated’ with it bribes another person intending to obtain or retain business or a business advantage for the organisation.
As part of a broader adequate procedures framework, which is expected to be in place under the Bribery Act, a commercial organisation’s top-level management (i.e. board of directors, the owners or any other equivalent body or person) must be able to demonstrate their commitment to prevent bribery by persons associated with it (e.g. by fostering a culture within the organisation that bribery is never acceptable).
A person associated with a commercial organisation is defined as a person who ‘performs services’ for or on behalf of the organisation. This can be an employee, an agent, an intermediary, or any of a number of association types. This person can also be an individual or an incorporated or unincorporated body.
The capacity in which a person performs services for or on behalf of the organisation does not matter, so employees (who are presumed to be performing services for their employer), agents and subsidiaries are included.
The question as to whether a person is performing services for an organisation will be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between that person and the organisation.
As noted in 'Ministry of Justice Guidance', the concept of a person who ‘performs services for or on behalf of’ the organisation has a broad interpretation and is meant to cover the whole range of persons connected to a commercial organisation - who might be capable of committing bribery on the organisation’s behalf.
The Bribery Act states it is a defence for a commercial organisation to prove that the commercial organisation had in place adequate procedures designed to prevent persons associated with the organisation from undertaking such conduct. But, the Act is also silent on the meaning of ‘adequate procedures.’
'Ministry of Justice Guidance' describes principles that should underpin a commercial organisation’s adequate procedures arrangements. The guidance provides helpful case studies but not a prescriptive solution. In short, it will be for the courts to decide whether the procedures in place are adequate.
The Guidance sets out six principles for bribery prevention for a commercial organisation to consider:
The Director of the Serious Fraud Office (‘SFO’) issued joint guidance with the Director of Public Prosecutions, as Guidance for prosecutors, setting out the Directors’ approach to deciding whether to prosecute under the Bribery Act. Click 'here' for more on the SFO.
If you are concerned that you may have got it wrong, it would be sensible to obtain appropriate advice:
A November 2022 SFO ’Press Release’ reports on the conviction of Glencore Energy [UK] Ltd, which will pay £281 million for paying bribes to gain preferential access to oil in Africa. The conviction includes the first ever use of substantive bribery offences for a company, meaning senior individuals at Glencore authorised the bribery instead of simply failing to prevent it.
The Financial Conduct Authority (FCA) does not enforce the Bribery Act 2010, but as a regulator, it expects authorised firms to have considered and taken steps to address the risk of bribery and corruption within their business, including where these risks come from third parties.
FCA, regulatory enforcement action includes:
Under the UK Bribery Act a facilitation payment is a type of bribe. This includes where a government official is incentivised (e.g. given money or goods to perform, or speed up performance of, an existing duty).
The Bribery Act does not provide any exemption for facilitation payments. Ministry of Justice guidance recognises that circumstances may arise when an individual has no alternative but to make a payment in order to protect against loss of life, limb or liberty. The common law defence of duress is likely to be available in such circumstances.
No. Gifts & hospitality expenditure (or receipt) is a source of bribery risk, but the scope is much broader:
The FCA does not enforce or give guidance on the Bribery Act. The FCA does expect authorised firms to have considered and taken steps to address the risk of bribery and corruption within their business, including where these risks come from third parties.
Reasonable steps are likely to include:
For further detail and examples of good and poor practice in anti-bribery and corruption - see Financial Crime: A Guide for Firms .
No anti-bribery and corruption (‘ABC’) framework can guarantee complete protection against, or prevention of corruption. The framework which is best suited to ‘Enterprise A’, may have some similarities and differences, to ‘Enterprise B’.
The framework arrangements which best suits your organisation’s needs should include:
For more on our ABC services - See ABC Services