We have set out below an overview of the key provisions of the UK Bribery Act 2010 (UKBA) as well as key guidance on the operation of the UKBA over the last decade.
The UKBA has an extremely broad jurisdictional reach and has been actively enforced by the UK Serious Fraud Office (SFO) against companies, particularly since 2017 (see below table of UK Deferred Prosecution Agreements (DPAs) relating to bribery offences).1
||Total financial order
||Standard Bank PLC
||Güralp Systems Ltd
||US$3.9 billion (combined multi-jurisdictional penalty)
The UKBA contains four main bribery offences:2
- a general offence of bribing;3
- a general offence of being bribed;4
- an offence of bribing a foreign public official5
(together the Principal Offences); and
- introduced a corporate offence of failing to prevent bribery by persons associated with relevant commercial organisations (the Failure to Prevent Offence).6
A Principal Offence is committed when a person (individual or corporate) either: (i) offers, promises or gives another person; or (ii) requests, agrees to receive or accepts, a financial or other advantage, with the intention of procuring or rewarding the improper performance of a “relevant function” by any person.7
The definition of “relevant function” is very wide: wherever there is an expectation that the relevant person will act in good faith, impartially or in accordance with a position of trust (in the UK or abroad), this will be covered.
“Improper performance” occurs when a relevant function is performed in breach of such expectation.8 With regard to the offence of bribing a foreign public official, it is sufficient that the relevant advantage is intended to obtain or retain an advantage in the conduct of business by influencing a foreign public official. Unlike the US FCPA, there is no exception for “facilitation payments”;9 i.e. these are illegal under the UKBA.
A corporate commits a Principal Offence where some part of the offence involves acts or omissions by sufficiently (i.e. very) senior officers or employees constituting ‘the directing mind and will’10 of the organisation.
Jurisdiction for the Principal Offences can be based on either:
- any act or omission which forms part of the offence taking place in the UK; or
- a close connection to the UK (e.g. residency, incorporation, citizenship).
Failure to Prevent Offence
The Failure to Prevent Offence carries strict liability: a bribe paid anywhere in the world by a commercial organisation’s “associated person” with the intention of benefiting the organisation (even without its knowledge) will cause the organisation to commit an offence, and the only defence is that it had in place “adequate procedures” to prevent bribery.
An "associated person" is defined under the UKBA as a "person who performs services" for or on behalf of the organisation, which may include employees, subsidiaries and agents. This is intended to be broad so as to embrace the whole range of persons connected to an organisation that might be capable of committing bribery on the organisation's behalf. This may include joint venture partners or entities depending on the circumstances.
The UK Ministry of Justice Guidance issued in March 2011 (UKBA Guidance) sets out the following six principles that should inform a commercial organisation’s approach in establishing adequate procedures. The focus in on active and effective procedures, rather than paper policies:
- proportionate procedures (i.e. procedures which are proportionate to the bribery risks which the organisation faces given its activities);
- top-level commitment (i.e. the senior management should foster a culture of non-tolerance for bribery and corruption across the organisation);
- risk assessment (i.e. the organisation should assess and document its exposure to potential internal and external bribery and corruption risks, reviewed on a periodic basis);
- due diligence (i.e. risk-based due diligence procedures in respect of business partners, agents and third parties);
- communication (i.e. ensuring that anti-bribery and corruption policies and procedures are well communicated internally and externally); and
- monitoring and review (i.e. monitoring and reviewing the effectiveness of the organisation’s policies and procedures and improving these as necessary).
The SFO has published guidance on its evaluation of compliance programmes.11
Under the Failure to Prevent Offence, there is no territorial restriction regarding the residence or place of incorporation of the commercial organisation or associated person, where it or he/she performs the services, or where the bribery takes place: the territorial reach of the offence is based on the definition of “relevant commercial organisation”: a body corporate or partnership that is either incorporated in, or “carries on a business or part of a business in” the UK.
The UKBA does not define “carries on a business or part of a business”, nor has this requirement been tested by the UK courts, but the UKBA Guidance states that:
“applying a common sense approach would mean that organisations that do not have a demonstrable business presence in the United Kingdom would not be caught…having a UK subsidiary will not, in itself, mean that a parent company is carrying on a business in the UK, since a subsidiary may act independently of its parent or other group companies.”
The former Director of the SFO commented shortly after publication of the UKBA Guidance that:
“In assessing whether having a subsidiary in the UK is sufficient to bring a foreign corporation within the Act, we have to look at the simple test in the Bribery Act and ask whether or not that foreign corporation is carrying on business here. If it is, then corruption that it commits anywhere else in the world is within the SFO’s jurisdiction. The Government's view is that it does not necessarily follow from the fact of having a subsidiary in the UK that the test is satisfied because the subsidiary could be acting wholly independently of the rest of the group.”
It is important to note that:
- the “organisation” refers to a specific corporate body or partnership, rather than a group of entities; and
- the bribe in question has to be offered or paid in order to obtain or retain business for that specific “organisation”.
To date, most major UK bribery cases have been settled by way of a DPA.12 This means that there is a lack of case law on this legislation but also suggests that the SFO is unlikely to be deterred from asserting jurisdiction during the course of an investigation.
The recent Airbus DPA judgment reflects a very broad approach towards the jurisdiction of the Failure to Prevent Offence. The judgment refers to the business of Airbus SE as having been “carried on in the United Kingdom” on two separate bases:
- a Spanish subsidiary of Airbus SE, Airbus Defence and Space SA, owns a U.K. company (Airbus Military U.K. Limited); and
- Airbus Military UK Limited and another U.K. company (Airbus Operations Limited) are “subject to the strategic and operational management of Airbus SE”.
According to the UKBA Guidance (as quoted above), the first basis is insufficient for Airbus SE to be deemed to carry out part of its business in the U.K. Whether or not the second basis is enough turns on whether the employees or third parties allegedly paying the bribes were associated with (and paid bribes for the benefit of) Airbus SE, rather than one of its subsidiaries.
Arguably, the SFO would have had real difficulty establishing jurisdiction against Airbus SE had this not been accepted by the company; the Judge highlighted, as an example of Airbus’ “exemplary co-operation,” its “unprecedented…submission to the SFO in respect of conduct overseas”.13