The Bribery Act 2010 - Guidance - GOV.UK
THEBRIBERYACT2010Guidanceabout procedures which relevant commercialorganisations can put into place to preventpersons associated with them from bribing(section 9 of the Bribery Act 2010)
THEBRIBERYACT2010Guidanceabout procedures which relevant commercialorganisations can put into place to preventpersons associated with them from bribing(section 9 of the Bribery Act 2010)
The Bribery Act 2010 – GuidanceForewordBribery blights lives. Its immediate victims include firms thatlose out unfairly. The wider victims are government and society,undermined by a weakened rule of law and damaged social andeconomic development. At stake is the principle of free and faircompetition, which stands diminished by each bribe offered oraccepted.Tackling this scourge is a priority for anyonewho cares about the future of business, thedeveloping world or international trade. Thatis why the entry into force of the BriberyAct on 1 July 2011 is an important stepforward for both the UK and UK plc. In linewith the Act’s statutory requirements, I ampublishing this guidance to help organisationsunderstand the legislation and deal with therisks of bribery. My aim is that it offers clarityon how the law will operate.Readers of this document will be awarethat the Act creates offences of offering orreceiving bribes, bribery of foreign publicofficials and of failure to prevent a bribebeing paid on an organisation’s behalf.These are certainly tough rules. But readersshould understand too that they are directedat making life difficult for the mavericksresponsible for corruption, not undulyburdening the vast majority of decent,law-abiding firms.2I have listened carefully to businessrepresentatives to ensure the Act isimplemented in a workable way – especiallyfor small firms that have limited resources.And, as I hope this guidance shows,combating the risks of bribery is largelyabout common sense, not burdensomeprocedures. The core principle it sets outis proportionality. It also offers case studyexamples that help illuminate the applicationof the Act. Rest assured – no one wants tostop firms getting to know their clients bytaking them to events like Wimbledon orthe Grand Prix. Separately, we are publishingnon-statutory ‘quick start’ guidance.I encourage small businesses to turn to thisfor a concise introduction to how they canmeet the requirements of the law.Ultimately, the Bribery Act matters for Britainbecause our existing legislation is out of date.In updating our rules, I say to our internationalpartners that the UK wants to play a leading
The Bribery Act 2010 – Guidancerole in stamping out corruption and supportingtrade-led international development. ButI would argue too that the Act is directlybeneficial for business. That’s because itcreates clarity and a level playing field,helping to align trading nations around decentstandards. It also establishes a statutorydefence: organisations which have adequateprocedures in place to prevent bribery are ina stronger position if isolated incidents haveoccurred in spite of their efforts.growth of trade. I commend this guidanceto you as a helping hand in doing businesscompetitively and fairly.Kenneth ClarkeSecretary of State for JusticeMarch 2011Some have asked whether business canafford this legislation – especially at a time ofeconomic recovery. But the choice is a falseone. We don’t have to decide between tacklingcorruption and supporting growth. Addressingbribery is good for business because it createsthe conditions for free markets to flourish.Everyone agrees bribery is wrong and thatrules need reform. In implementing this Act,we are striking a blow for the rule of law and3
The Bribery Act 2010 – GuidanceContentsIntroduction6Government policy and Section 7 of the Bribery Act8Section 1 – Offences of bribing another person10Section 6 – Bribery of a foreign official11Section 7 – Failure of commercial organisations to prevent bribery15The six principles20Appendix A: Bribery Act 2010 case studies325
The Bribery Act 2010 – GuidanceIntroduction1216The Bribery Act 2010 received Royal3Assent on 8 April 2010. A full copy ofthe Act and its Explanatory Notes canbe accessed at: www.opsi.gov.uk/acts/acts2010/ukpga 20100023 en 1The Act creates a new offence undersection 7 which can be committed bycommercial organisations1 which fail to4prevent persons associated with themfrom committing bribery on their behalf.It is a full defence for an organisationto prove that despite a particular caseof bribery it nevertheless had adequateprocedures in place to prevent personsassociated with it from bribing. Section 9of the Act requires the Secretary of Stateto publish guidance about procedureswhich commercial organisations can put inplace to prevent persons associated withthem from bribing. This document setsout that guidance.The Act extends to England & Wales,Scotland and Northern Ireland. Thisguidance is for use in all parts of theUnited Kingdom. In accordance withsection 9(3) of the Act, the ScottishMinisters have been consulted regardingthe content of this guidance. TheNorthern Ireland Assembly has also beenconsulted.5This guidance explains the policybehind section 7 and is intended to helpcommercial organisations of all sizesand sectors understand what sorts ofprocedures they can put in place to preventbribery as mentioned in section 7(1).The guidance is designed to be of generalapplication and is formulated aroundsix guiding principles, each followed bycommentary and examples. The guidanceis not prescriptive and is not a onesize-fits-all document. The question ofwhether an organisation had adequateprocedures in place to prevent bribery inthe context of a particular prosecution isa matter that can only be resolved by thecourts taking into account the particularfacts and circumstances of the case. Theonus will remain on the organisation, inany case where it seeks to rely on thedefence, to prove that it had adequateprocedures in place to prevent bribery.However, departures from the suggestedprocedures contained within theguidance will not of itself give rise to apresumption that an organisation doesnot have adequate procedures.If your organisation is small or mediumsized the application of the principlesis likely to suggest procedures that aredifferent from those that may be right fora large multinational organisation. Theguidance suggests certain procedures, butthey may not all be applicable to yourcircumstances. Sometimes, you may havealternatives in place that are also adequate.See paragraph 35 below on the definition of the phrase ‘commercial organisation’.
The Bribery Act 2010 – Guidance6As the principles make clear commercialorganisations should adopt a risk-basedapproach to managing bribery risks.Procedures should be proportionate tothe risks faced by an organisation. Nopolicies or procedures are capable ofdetecting and preventing all bribery.A risk-based approach will, however,serve to focus the effort where it isneeded and will have most impact. Arisk-based approach recognises that thebribery threat to organisations variesacross jurisdictions, business sectors,business partners and transactions.7The language used in this guidancereflects its non-prescriptive nature.The six principles are intended to be ofgeneral application and are thereforeexpressed in neutral but affirmativelanguage. The commentary followingeach of the principles is expressed morebroadly.8All terms used in this guidance havethe same meaning as in the Bribery Act2010. Any examples of particular typesof conduct are provided for illustrativepurposes only and do not constituteexhaustive lists of relevant conduct.7
The Bribery Act 2010 – GuidanceGovernment policy andSection 7 of the Bribery Act9Bribery undermines democracy and11the rule of law and poses very seriousthreats to sustained economic progress indeveloping and emerging economies andto the proper operation of free marketsmore generally. The Bribery Act 2010is intended to respond to these threatsand to the extremely broad range ofways that bribery can be committed. Itdoes this by providing robust offences,enhanced sentencing powers for thecourts (raising the maximum sentence forbribery committed by an individual from7 to 10 years imprisonment) and widejurisdictional powers (see paragraphs 1512and 16 on page 9).The objective of the Act is not to bringthe full force of the criminal law to bearupon well run commercial organisationsthat experience an isolated incident ofbribery on their behalf. So in order toachieve an appropriate balance, section7 provides a full defence. This is inrecognition of the fact that no briberyprevention regime will be capable ofpreventing bribery at all times. However,the defence is also included in order toencourage commercial organisationsto put procedures in place to preventbribery by persons associated with them.The application of bribery preventionprocedures by commercial organisationsis of significant interest to thoseinvestigating bribery and is relevantif an organisation wishes to report anincident of bribery to the prosecutionauthorities – for example to the SeriousFraud Office (SFO) which operatesa policy in England and Wales andNorthern Ireland of co-operation withcommercial organisations that self-referincidents of bribery (see ‘Approach of theSFO to dealing with overseas corruption’on the SFO website). The commercialorganisation’s willingness to co-operatewith an investigation under the BriberyAct and to make a full disclosure will alsobe taken into account in any decision asto whether it is appropriate to commencecriminal proceedings.10The Act contains two general offencescovering the offering, promising orgiving of a bribe (active bribery) andthe requesting, agreeing to receive oraccepting of a bribe (passive bribery)at sections 1 and 2 respectively. It alsosets out two further offences whichspecifically address commercial bribery.Section 6 of the Act creates an offencerelating to bribery of a foreign publicofficial in order to obtain or retainbusiness or an advantage in the conductof business2, and section 7 creates a newform of corporate liability for failing toprevent bribery on behalf of a commercialorganisation. More detail about thesections 1, 6 and 7 offences is providedunder the separate headings below.2Conduct amounting to bribery of a foreign public official could also be charged under section 1 of the Act. It will be forprosecutors to select the most appropriate charge.8
The Bribery Act 2010 – Guidance131434In order to be liable under section 7 acommercial organisation must havefailed to prevent conduct that wouldamount to the commission of an offenceunder sections 1 or 6, but it is irrelevantwhether a person has been convicted ofsuch an offence. Where the prosecutioncannot prove beyond reasonable doubtthat a sections 1 or 6 offence has beencommitted the section 7 offence will notbe triggered.The section 7 offence is in addition to,and does not displace, liability whichmight arise under sections 1 or 6 of theAct where the commercial organisationitself commits an offence by virtue of thecommon law ‘identification’ principle.3Jurisdiction15Section 12 of the Act provides that thecourts will have jurisdiction over thesections 1, 24 or 6 offences committedin the UK, but they will also havejurisdiction over offences committedoutside the UK where the personcommitting them has a close connectionwith the UK by virtue of being a Britishnational or ordinarily resident in the UK, abody incorporated in the UK or a Scottishpartnership.16However, as regards section 7, therequirement of a close connectionwith the UK does not apply. Section7(3) makes clear that a commercialorganisation can be liable for conductamounting to a section 1 or 6 offenceon the part of a person who is neithera UK national or resident in the UK, nora body incorporated or formed in theUK. In addition, section 12(5) providesthat it does not matter whether theacts or omissions which form part of thesection 7 offence take part in the UK orelsewhere. So, provided the organisationis incorporated or formed in the UK,or that the organisation carries on abusiness or part of a business in theUK (wherever in the world it may beincorporated or formed) then UK courtswill have jurisdiction (see more on this atparagraphs 34 to 36).See section 5 and Schedule 1 to the Interpretation Act 1978 which provides that the word ‘person’ where used in an Act includes bodiescorporate and unincorporate. Note also the common law ‘identification principle’ as defined by cases such as Tesco Supermarkets vNattrass [1972] AC 153 which provides that corporate liability arises only where the offence is committed by a natural person who is thedirecting mind or will of the organisation.Although this particular offence is not relevant for the purposes of section 7.9
The Bribery Act 2010 – GuidanceSection 1:Offences of bribing another person17Section 1 makes it an offence for a person(‘P’) to offer, promise or give a financial orother advantage to another person in oneof two cases:example, it takes place in a countryoutside UK jurisdiction) then any localcustom or practice must be disregarded– unless permitted or required by thewritten law applicable to that particularcountry. Written law means any writtenconstitution, provision made by or underlegislation applicable to the countryconcerned or any judicial decisionevidenced in published written sources. Case 1 applies where P intends theadvantage to bring about the improperperformance by another person ofa relevant function or activity or toreward such improper performance. Case 2 applies where P knows orbelieves that the acceptance of the20 By way of illustration, in order to proceedadvantage offered, promised or givenwith a case under section 1 based on anin itself constitutes the improperallegation that hospitality was intendedperformance of a relevant function oras a bribe, the prosecution would need toactivity.show that the hospitality was intended toinduce conduct that amounts to a breach18 ‘Improper performance’ is defined atof an expectation that a person will act insections 3, 4 and 5. In summary, thisgood faith, impartially, or in accordancemeans performance which amounts towith a position of trust. This would bea breach of an expectation that a personjudged by what a reasonable personwill act in good faith, impartially, or inin the UK thought. So, for example, anaccordance with a position of trust. Theinvitation to foreign clients to attend aoffence applies to bribery relating to anySix Nations match at Twickenham as partfunction of a public nature, connectedof a public relations exercise designedwith a business, performed in the courseto cement good relations or enhanceof a person’s employment or performedknowledge in the organisation’s field ison behalf of a company or another bodyextremely unlikely to engage sectionof persons. Therefore, bribery in both the1 as there is unlikely to be evidencepublic and private sectors is covered.of an intention to induce improperperformance of a relevant function.19 For the purposes of deciding whether afunction or activity has been performedimproperly the test of what is expectedis a test of what a reasonable person inthe UK would expect in relation to theperformance of that function or activity.Where the performance of the functionor activity is not subject to UK law (for10
The Bribery Act 2010 – GuidanceSection 6:Bribery of a foreign public official21Section 6 creates a standalone offenceof bribery of a foreign public official. Theoffence is committed where a personoffers, promises or gives a financial orother advantage to a foreign publicofficial with the intention of influencingthe official in the performance of his orher official functions. The person offering,promising or giving the advantage mustalso intend to obtain or retain business oran advantage in the conduct of businessby doing so. However, the offence is notcommitted where the official is permittedor required by the applicable written lawto be influenced by the advantage.22A ‘foreign public official’ includesofficials, whether elected or appointed,who hold a legislative, administrative orjudicial position of any kind of a countryor territory outside the UK. It alsoincludes any person who performs publicfunctions in any branch of the national,local or municipal government of sucha country or territory or who exercisesa public function for any public agencyor public enterprise of such a country orterritory, such as professionals workingfor public health agencies and officersexercising public functions in stateowned enterprises. Foreign public officialscan also be an official or agent of a publicinternational organisation, such as theUN or the World Bank.context of publicly funded businessopportunities by the inducement ofpersonal enrichment of foreign publicofficials or to others at the official’srequest, assent or acquiescence.Such activity is very likely to involveconduct which amounts to ‘improperperformance’ of a relevant functionor activity to which section 1 applies,but, unlike section 1, section 6 does notrequire proof of it or an intention toinduce it. This is because the exact natureof the functions of persons regardedas foreign public officials is often verydifficult to ascertain with any accuracy,and the securing of evidence will often bereliant on the co-operation of the stateany such officials serve. To require theprosecution to rely entirely on section1 would amount to a very significantdeficiency in the ability of the legislationto address this particular mischief. Thatsaid, it is not the Government’s intentionto criminalise behaviour where no suchmischief occurs, but merely to formulatethe offence to take account of theevidential difficulties referred to above. Inview of its wide scope, and its role in thenew form of corporate liability at section7, the Government offers the followingfurther explanation of issues arising fromthe formulation of section 6.Local law2423Sections 1 and 6 may capture the sameconduct but will do so in different ways.The policy that founds the offence atsection 6 is the need to prohibit theinfluencing of decision making in theFor the purposes of section 6 prosecutorswill be required to show not only thatan ‘advantage’ was offered, promisedor given to the official or to anotherperson at the official’s request, assent oracquiescence, but that the advantage was11
The Bribery Act 2010 – Guidanceone that the official was not permittedor required to be influenced by asdetermined by the written law applicableto the foreign official.2512In seeking tenders for publicly fundedcontracts Governments often permitor require those tendering for thecontract to offer, in addition to theprincipal tender, some kind of additionalinvestment in the local economyor benefit to the local community.Such arrangements could in certaincircumstances amount to a financialor other ‘advantage’ to a public officialor to another person at the official’srequest, assent or acquiescence. Where,however, relevant ‘written law’ permitsor requires the official to be influencedby such arrangements they will falloutside the scope of the offence. So,for example, where local planninglaw permits community investmentor requires a foreign public official tominimise the cost of public procurementadministration through cost sharing withcontractors, a prospective contractor’soffer of free training is very unlikelyto engage section 6. In circumstanceswhere the additional investment wouldamount to an advantage to a foreignpublic official and the local law is silentas to whether the official is permittedor required to be influenced by it,prosecutors will consider the publicinterest in prosecuting. This will providean appropriate backstop in circumstanceswhere the evidence suggests that theoffer of additional investment is alegitimate part of a tender exercise.Hospitality, promotional, and otherbusiness expenditure26Bona f
The Bribery Act 2010 – Guidance. 2. Foreword. Bribery blights lives. Its immediate victims include firms that lose out unfairly. The wider victims are government and society, undermined by a weakened rule of law and damaged social and economic development. At stake is the principle of free and fair
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The Bribery Act 2010 – Quick start guide. 1. The Bribery Act 2010 modernises the law . on bribery. It comes into force on 1 July 2011. This document offers a quick guide to the things you need to know to prepare your business for implementation. The Government has also produced detailed guidance about the Act and the . procedures that organisations can put in place to prevent bribery, as .
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Bribery Act 2010, for offences committed on or after 1st July 2011. The Bribery Act 2010 reforms the criminal law of bribery, making it a criminal offence to: Give, promise or offer a bribe (s.1), and/or Request, agree to receive or accept a bribe (s.2). Corruption is generally considered to be an “umbrella” term covering such various activities as bribery, corrupt preferential treatment .
The Bribery Act 2010 – Quick start guide. 1. The Bribery Act 2010 modernises the law . on bribery. It comes into force o
