United Kingdom

Reviewed April 2015
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PUBLIC OFFICIALS
    Is there an offence of bribing public officials?
    • Under sections 1, 2 and 6 of the Bribery Act 2010 (the Bribery Act), there are offences which cover bribes to both domestic and foreign public officials and the receipt, request or acceptance of a bribe by a domestic or foreign public official.

    What is the relevant test for each offence?
    • Under sections 1 and 2 of the Bribery Act, the offences of bribing another person and being bribed are linked to the “improper performance” of a “relevant activity or function”. A relevant function includes any function of a public nature (section 3(2)).

      A person will be guilty of bribery if he, directly or indirectly, offers, promises or gives a financial or other advantage to another, intending to induce another person to improperly perform a relevant function or activity or rewarding someone for doing so (section 1). A person will also be guilty of bribery if he, directly or indirectly, requests, agrees to receive or accepts a financial or other advantage in exchange for or as a reward for improper performance (section 2). It is also an offence, under sections 1 and 2, where the briber knows or believes that the acceptance of the advantage would itself be an improper performance of a relevant function. The Bribery Act provides that improper performance is performance (or non performance) that breaches the expectations of good faith, impartiality or breaches a position of trust. This is an objective test based on what a reasonable person in the UK would expect in relation to the performance of the relevant function or activity.

      Under section 6 of the Bribery Act, there is also a separate offence of bribing a foreign public official. It is an offence to promise, offer or give an advantage (financial or otherwise) intending to (a) influence the recipient in their capacity as a foreign public official; and (b) obtain or retain business or a business advantage. If an advantage is given to the official in such circumstances, an offence is committed. There is no requirement of impropriety.

    Can corporates and individuals commit the offence?
    • Both corporates and individuals can be liable for the offence of bribing domestic (section 1) or foreign public officials (section 6).  For the corporate to be liable for the offence of bribing a domestic or foreign public official, it must be shown that the “directing mind and will” of the corporate was implicated in the wrongdoing.  Under the “directing mind and will” test the fault element of the offence (ie intending the payment/offer or receipt of a bribe to induce improper performance or influencing a foreign official in the performance of his functions as a public official) must be attributable to someone who was at the relevant time the “directing mind and will” of the company. This will need to be someone at the higher levels of management, typically a director.

      In addition, there is a separate offence under section 14 whereby if it can be shown that the corporate committed one of the three main offences (under sections 1, 2 or 6) with a “senior officer’s” (or a person purporting to act in such a capacity) “consent or connivance”, the senior officer as well as the corporate will be liable. For the section 14 offence, it still has to be shown that the “directing mind and will” of the corporate committed the offence. 

      Under section 7 of the Bribery Act, there is also a separate corporate offence of “failing to prevent bribery”. A company (or partnership) incorporated in the UK or outside of the UK which carries on business or part of a business in the UK, will commit the offence if an “associated person” performing services on its behalf bribes another person in order to obtain or retain either business or a business advantage for the company. The only defence available for the company (or partnership) is to prove that it had “adequate procedures” in place designed to prevent bribery

    Does the offence have extra-territorial effect?
    • The principal offences under sections 1, 2 and 6 (bribing, receiving a bribe and bribing a foreign public official) cover acts of bribery committed in the UK, irrespective of whether the “function or activity” under the offence takes place in the UK or abroad, and irrespective of the nationality of the person committing the bribery.

      The Act also extends to an act of bribery occurring overseas if it would have been a bribery offence in the UK and the person/entity committing the bribery is a British citizen, an individual ordinarily resident in the UK, or a UK incorporated company.

      Under the section 14 “consent and connivance” offence, if the act of bribery takes place outside of the UK a senior officer may only be guilty if he has a close connection with the UK (ie a British citizen or an individual ordinarily residing in the UK).

      The section 7 corporate offence of failing to prevent bribery applies not only to entities incorporated in the UK, but also to any other entity (wherever incorporated) which carries on a business or part of a business in any part of the UK. This is irrespective of whether the act or omission in question occurs in the UK or overseas. For a foreign company “carrying on business or part of a business” could be through a branch, agent or representative office. It could also be through a subsidiary, if the subsidiary is in reality carrying out the overseas parent's business.

      It may also be the case that a parent company and/or other non UK group companies provide services to a UK subsidiary. In these circumstances, the UK subsidiary could be criminally liable for the overseas corruption by the overseas parent/group company.

    Are there any exceptions or defences?
    What are the penalties?
    • For individuals, there is a maximum penalty of ten years’ imprisonment and/or an unlimited fine for the offences of bribing a domestic or foreign public official (under both sections 1 and 6) and receiving a bribe by a domestic public official (section 2).

      For corporates, there is a penalty of mandatory debarment from EU Government contracts and/or an unlimited fine for the offences of bribing a domestic or foreign public official (under both sections 1 and 6) and an unlimited fine for the offence of receiving a bribe under section 2. For corporates guilty of committing the corporate offence under section 7 they may be liable on conviction on indictment to an unlimited fine and discretionary debarment from EU Government contracts. 

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    PRIVATE SECTOR
      Is there an offence for bribery within the private sector?
      • Under sections 1 and 2 of the Bribery Act, a person is guilty of an offence if he promises or gives or requests, agrees to receive or accepts a financial or other advantage intending it to induce a person to improperly perform a relevant function or activity, or reward a person for doing so or knowing that the bribe itself constitutes improper performance of a relevant function or activity.

      What is the relevant test?
      • Under sections 1 and 2 of the Bribery Act, the offences of bribing another person and being bribed are linked to the “improper performance” of a “relevant activity or function”. A relevant function or activity includes any activity connected with a business, any activity performed in the course of a person’s employment, and any activity performed by or on behalf of a body of persons.

        A person will be guilty of bribery if he, directly or indirectly, offers, promises or gives a financial or other advantage to another, intending to induce another person to improperly perform a relevant function or activity or rewarding someone for doing so (section 1). A person will also be guilty of bribery if he, directly or indirectly, requests, agrees to receive or accepts a financial or other advantage in exchange for or as a reward for improper performance (section 2). It is also an offence where the briber knows or believes that the acceptance of the advantage would itself be an improper performance of a relevant function. The Act provides that improper performance is performance (or non performance) that breaches the expectations of good faith, impartiality or breaches a position of trust. This is an objective test based on what a reasonable person in the UK would expect in relation to the performance of the relevant function or activity.

      Can corporates and individuals commit the offence?
      • Both corporates and individuals can be liable for the offences under sections 1 and 2 of the Bribery Act. For the corporate to be liable for the offence of bribing another person or being bribed, it must be shown that the "directing mind and will" of the corporate was implicated in the wrongdoing. Under the "directing mind and will" test the fault element of the offence (ie intending the payment/offer or receipt of a bribe to induce improper performance) must be attributable to someone who was at the relevant time the “directing mind and will” of the company.

        In addition, there is a separate offence under section 14 whereby if it can be shown that the corporate committed one of the main offences under sections 1 or 2 with a "senior officer’s" (or a person purporting to act in such a capacity) "consent or connivance", the senior officer as well as the corporate will be liable. For the section 14 offence, it still has to be shown that the "directing mind and will" of the corporate committed the offence.

        Under section 7 of the Bribery Act, there is also a separate corporate offence for “failing to prevent bribery”. A company (or partnership) incorporated in the UK or outside of the UK which carries on business or part of a business in the UK, will commit the offence if an “associated person” performing services on its behalf bribes another person in order to obtain or retain either business or a business advantage for the company. The only defence available for the company (or partnership) is to prove that it had “adequate procedures” in place designed to prevent bribery.

      Does the offence have extra territorial effect?
      • The principal offences under sections 1 and 2  (bribing and receiving a bribe) cover acts of bribery committed in the UK, irrespective of whether the “function or activity” under the offence takes place in the UK or abroad, and irrespective of the nationality of the person committing the bribery.

        The Act also extends to an act of bribery occurring overseas if it would have been a bribery offence in the UK and the person/entity committing the bribery is a British citizen, an individual ordinarily resident in the UK, or a UK incorporated company. 

        Under the section 14 “consent and connivance” offence, if the act of bribery takes place outside of the UK a senior officer may only be guilty if he has a close connection with the UK (ie a British citizen or an individual ordinarily residing in the UK). 

        The section 7 corporate offence of failing to prevent bribery applies not only to entities incorporated in the UK, but also to any other entity (wherever incorporated) which carries on a business or part of a business in any part of the UK.  This is irrespective of whether the act or omission in question occurs in the UK or overseas.  For a foreign company “carrying on business or part of a business” could be through a branch, agent or representative office.  It could also be through a subsidiary if the subsidiary is in reality carrying out the overseas parent's business. 

        It may also be the case that a parent company and/or other non UK group companies provide services to a UK subsidiary. In these circumstances, the UK subsidiary could be criminally liable for the overseas corruption by the overseas parent/group company.

      Are there any exceptions or defences?
      What are the penalties?
      • For individuals, there is a maximum penalty of ten years’ imprisonment and/or an unlimited fine for the sections 1 and 2 offences of bribing and receiving a bribe.

        For corporates, there is a penalty of mandatory debarment from EU Government contracts and/or an unlimited fine for the offence of bribing another person under section 1 and an unlimited fine for the offence of receiving a bribe under section 2.  For corporates guilty of committing the corporate offence under section 7 they may be liable on conviction on indictment to an unlimited fine and discretionary debarment from EU Government contracts. 

      This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.