The Bribery Act 2010 (“the Act”) has been devised to codify and clarify the offences of bribery in the United Kingdom which traditionally have existed under the common law. The Act was due to be enforced from April 2011 but is currently under review by the government. It is expected that the Act will be brought into force but this may follow considerable revisions of the current provisions.

The offences of bribery in the Act are defined very broadly and will apply outwith the United Kingdom if committed by a British national or UK incorporated commercial organisation. A new offence stated in the Act is the failure of a commercial organisation to prevent bribery. Commercial organisations include any corporate body or partnership that is either formed under the law or the United Kingdom or that carries out business in the United Kingdom. The organisation will also be guilty if an “associated person” bribes another to gain a benefit for the organisation. An associated person is someone who performs services on behalf of the commercial organisation which is very broad, encompassing employees, agents and even external third parties connected to the organisation.

Individuals and commercial organisations can both be found guilty under the Act, with penalties set at a maximum of ten years in prison for individuals and an unlimited fine for commercial organisations. The offence is a strict liability offence which means that the accused organisation must prove that they are not guilty of the offence, as opposed to having the crime proven by the procurator fiscal.

A commercial organisation accused of bribery has one defence under the Act: if it can prove that it had adequate procedures in place to prevent bribery. Again, this is a very wide term since procedures that may be adequate for a small business will certainly not be adequate for a very large company. Organisations will need to consider implementing or reviewing these procedures to ensure that they are protected from prosecution under the Act. Organisations should conduct a risk assessment to reveal their susceptibility to committing an offence under the Act. Since the Act can apply to bribery outwith the United Kingdom of foreign public officials, organisations with presences in regions where the risk of corruption is high will need to be extremely cautious. This will include any bribe including ‘grease payments’ even if these are customarily used to facilitate transactions with foreign public officials. The relevant test will be whether the offering would by considered a bribe by a reasonable person in the United Kingdom, regardless of local practice.

Organisations should also review their internal procedures to ensure that all parties connected to the organisation are aware of the impact of bribery and that a zero-tolerance policy can be implemented. There has been considerable consternation surrounding the Act particularly on the subject of corporate hospitality. The prospect of being hauled up by the Serious Fraud Office for overly lavish parties, golf outings or goody bags has been the subject of much discussion and worry. Organisations must consider the intention of such corporate hospitality. Could the event be considered to be an inducement to act improperly or without impartiality? Is it excessively lavish or is the timing of the event questionable? Any doubt on this should be discussed with your commercial solicitor to ensure that your organisation does not fall foul of the law.

James and George Collie has a team of specialist commercial solicitors who can advise organisations on the implications of the Act and help organisations develop clear policies and procedures to prevent organisations from committing an offence under the Act. For advice or information please contact our Commercial Department on This email address is being protected from spambots. You need JavaScript enabled to view it.