How-to guide: Understanding the Bribery Act 2010 offences (UK)

Introduction

This guide helps in-house lawyers and compliance professionals in organisations of all sizes and sectors in the UK to understand the scope and key elements of the UK Bribery Act 2010 (BA 2010) offences.

The BA 2010 came into force on 1 July 2011 and targets bribery and corruption in the private and public sectors. An understanding of the BA 2010 should underpin the creation and implementation of a compliance programme and aid in taking appropriate steps if you identify suspected misconduct.

This guide includes the following sections:

The bribery offences
Who can be liable?
Territorial scope
Defences

This guide can be read in conjunction with How-to guides: Understanding penalties for breach of the Bribery Act 2010, How to identify and assess bribery and corruption risk and How to prevent bribery and corruption, and Checklists: Anti-bribery and corruption risk assessment and Anti-bribery and corruption procedures.

Section 1 – The bribery offences

There are four offences under the BA 2010:

bribing another – active bribery (section 1);
being bribed – passive bribery (section 2);
bribing a foreign public official (section 6); and
the corporate offence of failing to prevent bribery (section 7).

Each of these is dealt with in turn in more detail below.

1.1 Section 1 BA 2010 offence – active bribery

1.1.1 The offence

Section 1 of the BA 2010 deals with the offence of bribing another person – active bribery. An offence is committed under section 1 of the BA 2010 if either of the two following cases apply.

Case 1: a person (P) offers, promises or gives a financial or other advantage to another person, and that person 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.
Case 2: a person (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.

In case 1 it does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.

In both cases it does not matter whether the advantage is offered, promised or given directly or through a third party.

The main elements of the offence are explained in more detail below.

1.1.2 Elements of the offence

Offering, promising or giving a financial or other advantage

In order for an offence to be committed under both cases, P must offer, promise or give a financial or other advantage to another. It is clear from this wording that it is not necessary that a bribe is actually given.

The term ‘financial or other advantage’ is not defined in the BA 2010, this is instead left as a matter of common sense for the courts. The breadth of the wording means that an advantage could be monetary or not, and tangible or intangible. An advantage may include, for example, vouchers, gifts, hospitality or entertainment.

Relevant function or activity

Both cases 1 and 2 feature the concept of the improper performance of a relevant function or activity. In case 1, the intention of the advantage offered, promised or given must be to induce or reward the improper performance of a relevant function or activity. In case 2, there must be knowledge or belief that acceptance of the advantage would itself constitute improper performance of a relevant function or activity.

Section 3 of the BA 2010 states that a function or activity is a relevant function or activity if it is as follows:

a function of a public nature;
an activity connected with a business;
an activity performed in the course of a person’s employment; or
an activity performed by or on behalf of a body of persons (whether corporate or not).

In addition to falling within one of the categories above, in order to be a relevant function or activity, it must satisfy any one of the following conditions:

condition A – a person performing the function or activity is expected to perform it in good faith;
condition B – a person performing the function or activity is expected to perform it impartially; or
condition C – a person performing the function or activity is in a position of trust by virtue of performing it.

The function or activity need not have a connection with the UK and (subject to meeting the above criteria) will be a relevant function or activity even when it is performed outside the UK.

Improper performance

Section 4 of the BA 2010 sets out the circumstances in which there will be improper performance of a relevant function or activity. Section 4 provides that a relevant function or activity is performed improperly if it is as follows:

it is performed in breach of a relevant expectation; or
there is a failure to perform the function or activity and that failure is itself a breach of a relevant expectation.

What constitutes a relevant expectation depends on which condition (see above) is met. For condition A, this is the expectation that the function or activity will be performed in good faith. For condition B, this is the expectation that the function or activity will be performed impartially. For condition C, this is the expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from the relevant position of trust.

Section 5 of the BA 2010 makes clear that the test of what is expected 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. If the performance of the relevant function or activity is not subject to UK law then any local custom or practice should be disregarded unless permitted or required by the relevant local written law.

Intention to induce or reward improper performance, or knowledge or belief that the acceptance of the advantage would itself constitute improper performance

For case 1, the offence requires that the advantage is intended to induce or be a reward for the improper performance of a relevant function or activity.

In contrast, for case 2, knowledge or belief is required on the part of P that the acceptance of the advantage in and of itself constitutes the improper performance of a relevant function or activity.

1.1.3 Example of active bribery

An example of active bribery which might fall within case 1 of section 1 BA 2010 is where a person offers a ‘grease payment’ in order to be considered for a bid to win in a tendering process.

In June 2022, Glencore pleaded guilty to seven counts of bribery under the BA 2010, including five substantive charges under section 1 and two under the corporate failure to prevent bribery offence, section 7. The Serious Fraud Office’s (SFO’s) case was that Glencore agents and employees paid bribes worth over $25 million for preferential access to oil, with approval by the company. In November 2022, Glencore was sentenced and ordered to pay the following:

fines totalling £182,935,392 million;
a confiscation order of £93,479,338.95 million; and
the investigation and prosecution costs of the SFO of £4,550,362 million.

1.2 Section 2 BA 2010 – passive bribery

1.2.1 The offence

Section 2 of the BA 2010 deals with the offence of being bribed – passive bribery.

In broad terms, a person commits an offence under section 2 where they request, accept or agree to accept a ‘financial or other advantage’ in exchange for the ‘improper performance’ of a relevant function or activity. The offence is committed by the person (the receiver) that accepts or agrees to accept the bribe.

More specifically, an offence is committed under section 2 of the BA 2010 in any of the four following cases.

Case 3 – where a person (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 (whether by R or another person).
Case 4 – where a person (R) requests, agrees to receive or accepts a financial or other advantage, and that itself constitutes the improper performance by R of a relevant function or activity.
Case 5 – where a person (R) requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity.
Case 6 – where, in anticipation of or in consequence of a person (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.

In all cases it does not matter if the bribe is to be received by R directly or through a third party or whether the benefit of the advantage is to be for R or another person.

In cases 4, 5 and 6 it does not matter whether R (or in case 6, a person other than R that is performing the function or activity) knows or believes that the performance of the function or activity is improper.

1.2.2 Elements of the offence

Case 3

In case 3 the improper performance of a relevant function or activity has not yet taken place, but the request, agreement or acceptance of an advance has taken place. It is necessary that there is intent on the part of R that, as a consequence, a relevant function or activity will be performed improperly by R or by another person. This intention is required, otherwise the offence would catch the request, agreement or acceptance of an advantage even where it is for a wholly legitimate purpose.

Case 4

Case 4 requires that R requests, agrees to receive, or accepts an advantage and that the request, agreement or advantage itself constitutes an improper performance by R.

Case 5

For case 5 to be proved R must request, agree to receive or accept a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity. Improper performance will have usually taken place prior to the request, agreement to receive or acceptance of an advantage.

Case 6

There are two alternatives in case 6.

The first is where as a consequence of R requesting, agreeing to receive or accepting an advantage, R or another person at R’s request or with R’s assent or acquiescence performs a relevant function or activity improperly.

The second is where R or another person at R’s request or with R’s assent or acquiescence performs a relevant function or activity improperly and the performance was in anticipation of R requesting, agreeing to receive or accepting an advantage.

Other elements

See section 1.1.2 above for further detail on the following concepts: a financial or other advantage, a relevant function or activity and improper performance.

1.2.3 Example of passive bribery

In 2018, Catherine Leahy was convicted of taking bribes while serving as a juror in a five-month money laundering and drug-trafficking trial. She was sentenced to six years’ imprisonment for a breach of section 2 of the BA 2010.

1.3 Section 6 BA 2010 – bribery of a foreign public official

1.3.1 The offence

Under section 6 of the BA 2010, a person (P) commits an offence where they offer, promise, or give a financial or other advantage to a foreign public official (F) with the intention of influencing the official in the performance of their official functions and where P intends to obtain or retain business or a business advantage. The offence of bribery of a foreign public official only covers the offering, promising or giving of bribes, and not the acceptance of them.

1.3.2 Elements of the offence

Foreign public official

A foreign public official is an individual who does any of the following:

holds a legislative, administrative, or judicial position of any kind, whether appointed or elected, of a country or territory outside the UK (or any subdivision of such a country or territory);
exercises a public function:
- for or on behalf of a country or territory outside the UK (or any subdivision of such a country or territory); or
- for any public agency or public enterprise of that country or territory (or subdivision); or
is an official or agent of a public international organisation (see further below).

Public international organisation

A public international organisation means an organisation whose members are any of the following:

countries or territories;
governments of countries or territories;
other public international organisations; or
a mixture of any of the above.

Offering, promising or giving any financial or other advantage

A section 6 offence is only committed as follows:

where P directly or through a third party offers, promises or gives any financial or other advantage either to F or to another person at F’s request or with F’s assent or acquiescence; and
F is neither permitted nor required by the written law applicable to them to be influenced in their capacity as a foreign public official by the offer, promise or gift.

The written law applicable to F is defined as the law of the relevant part of the UK where the performance of F’s functions would be subject to that law. Where the performance of F’s functions would not be subject to the law of a part of the UK, the written law is either the applicable rules of a public international organisation, or the law of the country or territory in relation to which F is a foreign public official (as contained in its written constitution or provision made by or under legislation, or judicial decisions that are evidenced in writing).

See section 1.1.2 above for further details on the concept of a financial or other advantage.

Influencing a foreign public official in the performance of their official functions

This means influencing the foreign public official in the performance of their functions as an official, which includes any omission to exercise their functions and any use of their position as an official (even if the foreign public official does not have authority to use their position in that way).

Intention to obtain or retain business or a business advantage

In addition to the foregoing required elements of the offence, in order to commit an offence under section 6 of the BA 2010, P must also intend to obtain or retain business or an advantage in the conduct of business.

1.3.3 Example of bribery of a foreign official

An example of an offence under section 6 of the BA 2010 is making a ‘grease payment’ to a foreign public official, which is an unofficial and illegal payment made to expedite a request or action. Where such facilitation payments are part of local custom, rather than permitted by the relevant written law, these could fall within the scope of the section 6 offence (subject to all of the requirements being met).

1.4 Section 7 BA 2010 – the failure to prevent offence

1.4.1 The offence

An offence under section 7 of the BA 2010 is committed by a relevant commercial organisation (C), if a person (A) associated with C bribes another person with the intention:

to obtain or retain business for C; or
to obtain or retain an advantage in the conduct of business for C.

1.4.2 Elements of the offence

Relevant commercial organisation

A relevant commercial organisation is one of the following:

a body incorporated under the law of any part of the UK and that carries on business (whether in the UK or elsewhere);
a partnership that is formed under the law of any part of the UK and that carries on business (whether in the UK or elsewhere); or
any other body corporate or partnership wherever incorporated or formed that carries on business in any part of the UK.

The government’s view on whether a business (which includes a trade or profession) is being carried on is that for bodies incorporated or partnerships formed in the UK, ‘so long as the organisation in question is incorporated (by whatever means), or is a partnership, it does not matter if it pursues primarily charitable or educational aims or purely public functions. It will be caught if it engages in commercial activities, irrespective of the purpose for which profits are made’. For bodies incorporated or partnerships formed outside of the UK ‘the Government anticipates 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’. Ultimately, whether a business is being carried on will be a matter for the courts.

Person associated

Pursuant to section 8 of the BA 2010, a person associated with C is a person who performs services for or on behalf of C. The capacity in which the associated person performs the service does not matter.

Government guidance notes that the broad scope of associated person ‘means that contractors could be “associated” persons to the extent that they are performing services for or on behalf of a commercial organisation. Also, where a supplier can properly be said to be performing services for a commercial organisation rather than simply acting as the seller of goods, it may also be an “associated” person’. With regard to supply chains, the government considers that ‘where a supply chain involves several entities or a project is to be performed by a prime contractor with a series of subcontractors, an organisation is likely only to exercise control over its relationship with its contractual counterparty’.

Whether or not A is a person who performs services for or on behalf of C is determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between A and C. However, if A is an employee of C, it is presumed A is a person who performs services for or on behalf of C unless the contrary is shown.

A must bribe another person

In order for the offence to be made out, A must bribe another person. A bribes another person if, and only if, A is, or would be, guilty of an offence under section 1 (active bribery) or section 6 (bribery of a foreign public official). There is no need for there to have already been a successful prosecution for a section 1 or 6 offence, it is enough for the prosecution to show that the person would be guilty of either offence if that person was prosecuted.

The BA 2010 makes clear that for the purposes of the offence in section 7 (failure of a commercial organisation to prevent bribery) it is immaterial where the conduct element of the offence occurs. In addition, there is no need for A to have a close connection to the UK; rather, so long as C falls within the definition of ‘relevant commercial organisation’ that should be enough to provide courts in the UK with jurisdiction.

Intending to obtain or retain business or a business advantage

A must intend to obtain or retain business or an advantage in the conduct of business for C. There is no legislative guidance on what constitutes business or a business advantage.

Government guidance notes that ‘the fact that an organisation benefits indirectly from a bribe is very unlikely, in itself, to amount to proof of the specific intention required by the offence’. In the context of parent and subsidiary relationships, government guidance states ‘without proof of the required intention, liability will not accrue through simple corporate ownership or investment, or through the payment of dividends or provision of loans by a subsidiary to its parent’.

1.4.3 Example of the failure to prevent offence

Petrofac Limited is a UK provider of oilfield services to the oil and gas industry on an international level. It admitted that it failed to prevent former senior staff members from paying around £32 million in bribes to assist Petrofac Group to win over £2.6 billion of contracts in the oil and gas industry in Iraq, Saudi Arabia and the United Arab Emirates.

Section 2 – Who can be liable?

2.1 Corporate liability

2.1.1 Sections 1, 2 and 6 BA 2010

Sections 1, 2 and 6 of the BA 2010 apply to ‘persons’. Under the Interpretation Act 1978, a person includes a body of persons whether corporate or not. Therefore, a corporation could be guilty of the section 1, 2 or 6 offences of bribing another or accepting a bribe.

A commercial organisation could be convicted of a criminal offence contrary to sections 1, 2 or 6 BA 2010 based on the common law rules that govern the attribution of criminal liability, namely the identification doctrine. The identification principle requires the identification of a ‘directing mind and will’ of the company and then, through their conduct and state of mind, the proving of corporate criminal liability.

In addition, the Economic Crime and Corporate Transparency Act 2023 introduced a new statutory route to corporate liability for certain economic crimes. Section 196 provides that ‘if a senior manager of a body corporate or partnership ('the organisation') acting within the actual or apparent scope of their authority commits a relevant offence after this section comes into force, the organisation is also guilty of the offence'. A relevant offence includes an offence under sections 1, 2 and 6 of the BA 2010, any attempt or conspiracy to commit such an offence or aiding, abetting, counselling or procuring the commission of such an offence.

The definition of ‘senior manager’ under section 196(4) in relation to a body corporate or partnership means ‘an individual who plays a significant role in— (a) the making of decisions about how the whole or a substantial part of the activities of the body corporate or (as the case may be) partnership are to be managed or organised, or (b) the actual managing or organising of the whole or a substantial part of those activities’. This is significantly wider in scope than the common law principle requiring the identification of a directing mind and will. The explanatory notes to the Act state that:

‘A senior manager is an individual who plays a significant role in the making of decisions about how the whole or a substantial part of the activities of the body are to be managed or organised, or the actual managing or organising of the whole or a substantial part of those activities. This covers both those in the direct chain of management as well as those in, for example, strategic or regulatory compliance roles. 'Substantial part of the business relates to the importance of the activity over the operations of a business as a whole.

'Senior management' would normally include a company’s directors and other senior officers such as a Chief Financial Officer or Chief Operating Officer, whether or not they are members of the Board. This would include organisations such as charities where, because of restrictions on trustees receiving benefits from the charity, the organisation’s salaried chief officers are not usually members of the Board. Other individuals who have significant roles in relation to a substantial part of the organisation’s activity, such as its human resources function, would also be included. However, 'senior management' is not limited to individuals who perform an executive function or are board members, it covers any person who falls within the definition irrespective of their title, remuneration, qualifications or employment status’.

Whether or not a senior manager was acting within the actual or apparent scope of their authority will depend on whether the act was of a type that the senior manager was authorised to undertake or which would ordinarily be undertaken by a person in that position. In order to have been acting within the actual or apparent scope of their authority, this does not mean that the senior manager must have been authorised to carry out a criminal offence.

Although the scope of employees whose actions may lead to corporate liability for the company has been expanded, the usual elements of criminal liability will need to be proven for the senior manager in question, including that of possession of the necessary mens rea.

2.1.2 Section 7 BA 2010

Section 7 BA 2010 is a strict liability offence meaning that there is no need to prove negligence or the involvement and guilt of the ‘directing mind and will’ of the organisation, thus making it easier for the prosecuting authority to prove. The onus falls on the organisation to prove in its defence that it had adequate procedures in place to prevent bribery (see further below at 4.3).

2.2 Individual liability

Offences under sections 1, 2 and 6 may be committed by an individual.

Where an offence under sections 1, 2 or 6 is committed by a company, if that offence is proved to have been committed with the consent or connivance of a senior officer or a person purporting to act in such a capacity, then that senior officer (or person) is guilty of the offence in addition to the company and is liable to be proceeded against and punished accordingly. In order for this to be the case, the senior officer or person must have a close connection with the UK (see further below section 3.1).

Section 3 – Territorial scope

3.1 Offences under sections 1, 2 and 6

The offences under sections 1, 2 and 6 will be committed if any act or omission that forms part of the offence takes place in the UK.

In addition, the UK courts have jurisdiction even where no part of the conduct takes place in the UK if the person’s conduct would be an offence had it occurred in the UK and that person has a close connection with the UK.

A close connection means that the person at the time that the acts or omissions were done or made was one of the following:

a British citizen;
a British overseas territories citizen;
a British national (overseas);
a British overseas citizen;
a person who under the British Nationality Act 1981 was a British subject;
a British protected person within the meaning of the British Nationality Act 1981;
an individual ordinarily resident in the United Kingdom;
a body incorporated in the United Kingdom; or
a Scottish partnership.

3.2 Section 7 offence

For the purposes of the offence in section 7, it is immaterial where the conduct element of the offence occurs. The UK courts have jurisdiction provided that the organisation is incorporated or formed in the UK, or that the organisation carries on a business or part of a business in the UK (wherever in the world it may be incorporated or formed).

Section 4 – Defences

4.1 Common law defences

The BA 2010 guidance recognises that there are circumstances in which individuals are left with no alternative but to make payments in order to protect against loss of life, limb or liberty. The common law defence of duress is available in these situations. The common law defence of duress is available where a defendant was impelled to act in fear of death or serious injury.

4.2 Proper exercise of certain functions defence to offences under sections 1 and 2

Section 13 of the BA 2010 sets out a limited defence to the section 1 and 2 offences. This defence exists where a defendant proves that their conduct was necessary for the proper exercise of any function of an intelligence service, or the proper exercise of any function of the armed forces when engaged on active service.

The section 13 defence is not applicable to anyone that is prosecuted for bribing a foreign public official (section 6 offence).

4.3 Defence of adequate procedures to an offence under section 7

It is a defence to the section 7 offence of failing to prevent bribery by associated persons for a commercial organisation to prove that it had in place adequate procedures, to prevent such conduct by associated persons. The onus is on the organisation to prove, on a balance of probabilities, that it had adequate procedures in place.

The Ministry of Justice has issued guidance which sets out six principles (listed below) that they believe will inform procedures to be put in place by commercial organisations wishing to prevent bribery being committed on their behalf.

4.3.1 Proportionate procedures

As with any risk, the procedures should be proportionate to the risk the organisation faces. They should take account of the extent of the level of risk, nature, scale and complexity of the business. The procedures should mitigate identified risks as well as prevent deliberate unethical conduct on the part of the associated persons.

4.3.2 Top-level commitment

Those that sit at top-level management of an organisation are in a prime position to implement a culture where bribery is never acceptable. In order to be effective, a clear message should be sent to state that integrity is key and there is zero tolerance to bribery at the organisation.

4.3.3 Risk assessment

An organisation should assess the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with it. The assessment is periodic, informed and documented.

4.3.4 Due diligence

An organisation should apply due diligence procedures. In order to mitigate identified bribery risks, it should take a proportionate and risk-based approach with regard to those who perform or will perform services for or on behalf of the organisation.

4.3.5 Communication (including training)

An organisation should seek to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training that is proportionate to the risks it faces.

4.3.6 Monitoring and review

An organisation should monitor and review procedures designed to prevent bribery by persons associated with it and make improvements where necessary.

Additional resources

The Sentencing Council
The Crown Prosecution Service
The Serious Fraud Office
Ministry of Justice Bribery Act 2010 Quick start guide
Ministry of Justice Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing
Joint SFO-CPS Corporate Prosecution Guidance

Filed under

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Laws

Bribery Act 2010 (UK)