The UK Bribery Act 2010 (the Act) is currently undergoing post-legislative scrutiny, the process for which was set out by the Government in 2008.

In June 2018, the Ministry of Justice published a memorandum which scrutinises the Act almost seven years after it was first enacted. The memorandum provides a useful insight into the scope, implementation and enforcement of the Act.

Key takeaways

• Raising awareness: The Ministry of Justice has concluded that the corporate offence of failure to prevent bribery under section 7 of the Act has generally been well publicised. As a consequence, many large, small and even overseas-headquartered businesses have found it necessary to conduct a review of the specific bribery risks they face and put in place procedures to mitigate these.
• Enforcement against corporates: Despite all of the publicity there has been a distinct shortage in the number of prosecutions against corporates for failure to prevent bribery. Since 1 July 2011, there have been only two cases prosecuted under section 7 of the Act.[1] The inclusion of the three DPAs[2] predicated at least part on section 7 brings the total to five section 7 cases in nearly seven years. Three further cases have been settled through the self-report scheme in Scotland. The memorandum suggests that this apparently low total reflects “the typically long investigations in corporate bribery cases…involving liaison with the authorities of foreign jurisdictions and the obtaining, review and analysis of large amounts evidence, bringing with it onerous disclosure obligations for the prosecuting authorities and the protracted criminal proceedings in these cases due to the need for consideration of complex legal issues such as the impact of legal privilege.”
• No prosecutions for bribery of foreign public officials: There have yet to be any prosecutions for bribery of foreign public officials under section 6 of the Act. According to the memorandum: “The reason for the lack of prosecutions under section 6 of the Act is not clear but it may be in part because any individuals perpetrating bribery overseas on behalf of businesses seeking publicly funded business opportunities will typically not be UK nationals or non-nationals ordinarily resident in the UK.”
• Increase in number of investigations: The enforcement statistics show a recent surge in the number of bribery investigations. In 2017 prosecutors brought proceedings against 16 defendants under sections 1 and 2 of the Act (compared to 6 defendants in 2016).
• Jurisdiction: No legal issues relating to the interpretation of the Act have emerged during the criminal proceedings to date, including the three DPAs. However, in 2014 the Court of Appeal did provide an insight into the potential scope of the jurisdiction of section 7 through its interpretation of what “carrying on business in the UK”[3] means in the context of an appeal from a decision of the Competition Appeal Tribunal.[4] In Akzo Nobel N.V. v Competition Commission & ors, the Court held that it is not necessary for a company to have a physical presence or fixed place of business in the UK to be found to be carrying on business here. The wording is designed to catch foreign companies that have a demonstrable business presence in the UK.
• Overseas recognition: According to the memorandum, the Act is recognised internationally as the leading model for effective criminal anti-bribery legislation alongside the US Foreign Corrupt Practices Act and the UK is recognised as one of the top four enforcers of the OECD Convention against bribery. The memorandum also notes that the Act has heavily influenced overseas bribery legislation and has formed the basis of new legislation and guidance in some of the British Overseas Territories, Malaysia and Argentina.

House of Lords Bribery Act 2010 Committee

As part of the scrutiny drive, the House of Lords has established a Bribery Act 2010 Committee. The Committee’s mandate consists of examining the effectiveness of the Act, including identifying improvements to the prosecution of corrupt conduct, the Act’s impact on SMEs and the use of DPAs in relation to bribery offences. Most recently, in November 2018, the Committee examined differences in the handling of bribery cases between England, Wales and Scotland.

[1] R v Sweett Group plc (2015), unreported; and R v Skansen Interiors Limited (2018), unreported

[2] Standard Bank Plc (30/11/15); XYZ Ltd (11/7/16); and Rolls-Royce Plc (17/1/17)

[3] Although note the slight discrepancy – section 7(5)(b) refers to a body corporate which “carries on a business”

[4] [2014] EWCA Civ 482