Vol 8 (2011) - Issue 4

Article preview

The Bribery Act 2010

The Bribery Act 2010 comes into force on 1 July 2011. The Act repeals the old English bribery laws contained in three statutes dated between 1889 and 1916. The principles in these old statutes are replicated in the Act, which also introduces a new offence. The Act also abolishes common law offences of bribery. The origins of the Act lie in a perception that Britain was behind the rest of the world in tackling bribery, the fact that although Britain had ratified the Organisation of Economic Cooperation and Development Bribery Convention (OECD) 1998 there had been no successful prosecutions of a company for bribery in Britain, and OECD criticism of the handling of the bribery investigation into BAe Systems. The Act extends to England and Wales, Scotland and Northern Ireland.

The Act creates four new offences:

– Active bribery

- bribing another person

– Passive bribery

– being bribed

– Bribery of a foreign public official

– Failure by a commercial organisation to prevent bribery.



There are two cases of active bribery set out in section 1: case 1 is where P offers, promises or gives a financial or other advantage to another person and P intends the advantage to induce a person to perform improperly a relevant function or activity, or to reward a person for the improper performance of such a function or activity. Note that the person bribed does not have to be the same person as the one performing the function or activity concerned. Case 2 is where P offers, promises or gives a financial or other advantage to another person, and P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity.

There are four further cases of passive bribery set out in section 2. Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly; case 4 is where R requests, agrees to receive or accepts a financial or other advantage and the request, agreement or acceptance itself constitutes the improper performance of a relevant function or activity; case 5 is where R requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance of a relevant function or activity; case 6 is where, in anticipation of or in consequence of R requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by R or by another person at R’s request or with R’s assent or acquiescence. There is no definition of 'financial or other advantage'.

In cases 3-6 it does not matter whether R requests, agrees to receive or accepts the advantage directly or through a third party, and whether the advantage is for the benefit of R or another person. In cases 4 - 6 it does not matter whether R knows or believes that the performance of the function or activity is improper.

In case 6, where someone other than R is performing the function or activity, it also does not matter whether that person knows or believes that the performance of the function or activity is improper. A relevant 'function or activity' is defined in section 3, and covers all functions of a public nature, all activities connected with a business (including a trade or profession), all activities performed in the course of a person’s employment, and all activities performed by or on behalf of a body of persons (whether corporate or not). There must be an expectation that the person performing the function or activity is expected to perform it in good faith or impartially, or is in a position of trust by virtue of performing it. The function or activity will be relevant even if it has no connection with the UK and is performed in a country or territory outside the UK.

Section 4 provides a definition of 'improper performance.' A relevant function or activity is improperly performed if it is performed in breach of a relevant expectation, or if there is non-performance which is itself a breach of a relevant expectation. The relevant expectation is the expectation of good faith or impartiality, or any expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from a position of trust.