What is the Bribery Act 2010?

The Bribery Act 2010, which came into force on 1 July 2011, aimed to create one comprehensive piece of anti-corruption legislation. It relates to both companies and individuals, and covers acts committed in the UK and abroad.

What is bribery?

A bribe is giving, or offering to give an advantage which is intended to influence a person to carry out a function or activity (which is usually connected with their employment or office) improperly, or to reward them for doing so. An advantage could be financial, or could include other types of advantages.

A bribe also includes giving, or offering to give an advantage to someone else, when they know or believe that if the person accepted it, they would be performing a relevant function or activity improperly.

The Bribery Act sets out a number of different scenarios whereby a person could be guilty of making a bribe and/ or accepting a bribe. It also defines what constitutes a ‘relevant function or activity’, what constitutes ‘improper performance’ and how to determine whether the ‘expectation test’ has been met.

Identifying whether any particular situation constitutes bribery requires a forensic examination of the particular circumstances of any individual situation. In most instances, whether or not the scenario in question constitutes bribery will not be entirely straightforward.

What does the law say?

Although there are only a handful of key bribery offences identified by the Bribery Act 2010, as the answer to the above question tends to demonstrate, the Bribery Act 2010 is a complicated and convoluted piece of legislation.

The four main offences are:

• Section 1 – bribing another person
• Section 2 – being bribed
• Section 6 – bribing a foreign public official
• Section 7 – failing to prevent bribery by a corporate entity

Those principal offence categories all involve subtle differences. For example, under Sections 1 and 2, which create the offences of bribing another and being bribed, provide for a number of slightly different scenarios:

• One scenario involves either promising, offering or giving, or agreeing to receive or accepting, a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly.
• Another scenario involves either promising, offering or giving, or agreeing to receive or accepting a financial or other advantage which may, in certain circumstances, constitute the improper performance of one’s function in and of itself. There may be a suggestion that a person was not acting in good faith (where for example there is a conflict of interest), or where a duty of impartiality is said to have been breached.

Section 6 makes it an offence to promise, offer or give an advantage to a foreign public official, while Section 7 provides that companies can be liable for a failure to prevent bribery by a person associated with the organisation, unless they can prove they had in place adequate procedures to prevent such conduct.

The Bribery Act 2010 was designed to cover a vast number of scenarios, involving companies and individuals. This means that various situations can be ‘shoehorned’ into one or another of its example situations. This, in turn, means that it is crucially important to ensure that legal advice is sought at an early stage.

Interpreting the Law on Bribery

As observed at the outset, although the Bribery Act 2010 sought to bring the piecemeal anti-corruption laws in the UK up to date so that it was contained in one comprehensive piece of legislation appropriate for the 21^st century, the result is complicated.

For example, a Section 2 offence of being bribed may or may not involve an intention that the receipt of the financial advantage should in some way result in the improper performance of a function. Whereas, in another Section 2 scenario, there is no mention of intent. Instead, the receipt of the financial advantage in and of itself constitutes the improper performance of the relevant function or activity.

This means that, for certain offences, there is no mental element to the offence and it does not matter whether the person being bribed knows or believes that the performance of the function or activity is improper. In this respect, the offence is one of strict liability.

To ascertain whether a scenario is contrary to the law on Bribery, it is necessary to work through the various elements of a particular set of circumstances, and the elements of the offence.

What is a relevant function?

The definition of the “function or activity” to which a bribe relates is contained in Section 3. The description is drafted in very wide terms and includes any function or activity, even if it has no connection with the UK and is performed outside of the UK, involving:

(a) any function of a public nature,

(b) any activity connected with a business (which includes a trade or profession),

(c) any activity performed in the course of a person’s employment,

(d) any activity performed by or on behalf of a body of persons (whether corporate

or unincorporate).

It must meet one of three conditions that either a person performing the function or activity is expected to perform it in good faith, or impartially, or that a person performing the function or activity is in a position of trust by virtue of performing it.

What is improper performance?

The concept of “improper performance” is relevant to both making a bribe and being bribed. Section 4 explains that a relevant function or activity is performed improperly if it is performed in breach of a relevant expectation, and is to be treated as being performed improperly if there is a failure to perform the function or activity and that failure is itself a breach of a relevant expectation.

The Expectation Test

Section 5 contains what is entitled the “Expectation Test”. This is a test of what a reasonable person in the UK would expect in relation to the performance of the type of function or activity concerned.

Once all of the above elements have been unpicked, ultimately, the question is whether the behaviour is what is expected of a reasonable person in the UK.

What is the sentence for bribery?

As ever, there is no simple answer to this question. It very much depends on the individual circumstances of any particular case.

The Sentencing Council has published guidance for Courts imposing sentence which takes a step by step approach in order to identify the culpability of the individual or company and the harm that resulted from the conduct. Once the starting point has been identified, individual circumstances of the offender are taken into account to determine the appropriate sentence.

The more serious the offence, the more serious the consequences an individual found guilty of an offence of bribery could be, with a sentence of up to 10 years imprisonment. Companies could face an unlimited fine, as well as other more far reaching consequences such as removal of tainted gains; debarment from public sector contracts/tenders or disqualification of directors.

How can we help?

Camilla Rents, a Director of Old Bailey Solicitors has experience of representing clients under investigation for, and charged with, bribery offences.

She has represented an individual investigated for bribery relating to contract tenders and ministerial corruption in Algeria, against whom the SFO took no further action. More recently, she acted for one of three individuals working in the corporate fit-out industry charged with bribery and money-laundering by the SFO. The allegations involved the payment of very significant amounts by way of fees paid in respect of valuable contracts. After a 15 week trial, our client (as well as the other 2 codefendants) was found not guilty of all charges.

We have the necessary knowledge to guide you through what can feel like an incredibly daunting process. If you have been accused of an offence, contact Old Bailey Solicitors on 0207 8464 999 or at [email protected] to obtain legal assistance at the earliest opportunity.