THE MAGAZINE

The U.K. Bribery Act, Year One

By Raymond L. Sweigart

The Bribery Act creates a specific offense for bribery of a foreign public official and creates a new “corporate offense” of failure by a commercial organization to prevent bribery on its behalf.

The act has broad extraterritorial application, and a U.K. citizen or entity can be subject to liability even where relevant conduct occurs outside the United Kingdom. Those who are not citizens of the United Kingdom can be liable if they carry on any aspect of a business in any part of the United Kingdom.

Under the act, liability can be imposed on an organization for “failure to prevent bribery by an associated person” whenever a person associated with the organization pays a bribe for the organization’s benefit. An “associated person” is defined broadly to include anyone who performs services on behalf of the organization. This differs from the FCPA, which holds an organization liable only for bribery committed by employees and agents.

Under the Bribery Act, no proof of knowledge or intent is required for an organization or individual to be found criminally liable under the law, as this is now a “strict liability” offense. Prosecution under the FCPA requires proof of corrupt intent.

The Bribery Act does provide one defense to the strict liability corporate offense: an organization accused of failure to
prevent bribery may be absolved of liability if it can demonstrate that it had established “adequate procedures” to prevent such bribery by associated persons. The act itself does not define “adequate procedures.” Instead, the act required the U.K. government to promulgate guidance on the procedures that commercial entities could put in place. The agency that handles this type of crime within the U.K. is the Serious Fraud Office (SFO). After several versions, it settled on guidance that ultimately tracked similar language in the U.S. and Europe.

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