The Bribery Act 2010’s four primary categories of offence

Nick Johnson QC, Nick Hill and Sophie O’Sullivan authored the third chapter of Lissack and Horlick on Bribery and Corruption. This chapter summary looks at the four primary categories of offence under the Bribery Act 2010, with reference to recent trials, caselaw, guidance and deferred prosecution agreements. It is part of a serialisation of the chapters that members of Outer Temple contributed to the publication.

The Bribery Act 2010 abolished the common law offences and swept away the somewhat outdated nineteenth and twentieth century Prevention of Corruption Acts, to provide clarity to bribery law by putting the offences in a singular, statutory context. Chapter 3 of Lissack and Horlick on Bribery and Corruption answers core and fundamental questions about the composition and scope of the four primary categories of bribery offence created by the Act:

• Section 1 deals with the conduct of the briber
• Section 2 covers the conduct of the recipient of a bribe
• Section 6 is concerned only with bribing a foreign official
• Section 7 concerns failure by a commercial organisation or partnership to prevent bribery.

The chapter explores the parliamentary intention behind the legislation, what the prosecution do and do not have to prove to establish guilt as well as the burden and standard of proof, to untangle what may or may not be viewed as illegal activity and ‘improper performance’, such as facilitation payments, offset arrangements and even corporate hospitality and gifts.

The chapter depicts the wide jurisdictional reach of the Act’s offences, in particular the scope of the controversial ‘close connection’ rule which has the effect of bringing prohibited conduct committed outside of the UK within the territorial reach of the Act and the extent to which individuals and corporate entities may be directly or indirectly liable for bribery offences under the Act.

Through the lens of recent criminal trials, relevant case law and publicised deferred prosecution agreements, the chapter also considers the wide-reaching implications of the section 7 strict liability offence of failing to prevent bribery upon domestic and global businesses and corporations, the potential ambit of concepts such as ‘carrying on a business’, an ‘associated person’ and the single defence available of having ‘adequate procedures’ in place to prevent bribery.

The chapter is essential reading for those not only wishing for a thorough and authoritative understanding of the Act but how its provisions have been, or are likely to be, interpreted and applied in key areas of practice.

Read the Chapter

The full chapter is available for Lexis Nexis subscribers here.

About the Authors

Nick Johnson QC specialises in complex financial and business crime disputes, together with cross-over regulatory, commercial and civil work. He is ranked at Silk Band 1 for Financial Crime by Chambers & Partners 2020 and at Silk Tier 1 for Business & Regulatory Crime by the Legal 500 2021. Nick has developed a particular expertise in bribery and corruption cases, including large scale multi-jurisdictional investigations. In addition to the UK, he has experience of corporate investigations brought by the DOJ and SEC in the United States and similar litigation in Europe and the Middle East. He is a member of the Bar Council International Committee, within which he leads the North America working group.

Recent or extant work includes:

• Acting for directors in ongoing SFO investigations into Tata Steel and the Axiom legal fund.
• Representing a VP Finance in a Johnson & Johnson / DePuy medical devices bribery case, currently criminal and civil proceedings in Athens, Greece.
• Representing a corporate facing a MOD bribery investigation over military contracts in the Middle East.
• Acting for the Respondent in LCIA arbitration proceedings concerning a £115m international commercial dispute.
• Acting for the MD of Skansen Interiors Ltd in the first ever jury trial of the s.7 Bribery Act 2010 offence.

Sophie O’Sullivan specialises in business crime and professional regulation. Her practice encompasses business crime, commercial fraud, asset forfeiture, financial regulation and compliance, sanctions, professional discipline, and health and safety. She is ranked in the Legal 500 2021 as a Leading Junior in Fraud and is a member of the Attorney General’s Panel of Junior Counsel to the Crown. Sophie acts for companies and company officers regarding allegations of fraud, money laundering, bribery and corruption, tax evasion, insider dealing and sharp practices. She conducts contentious work, appearing in crown and appellate courts, in addition to her advisory practice, providing opinions on legal issues including financial sanctions regimes, market manipulation and sharp practices, financial regulation proceedings and pre-charge advice.

Recent or extant work includes:

• Representing the director of a major construction company against allegations of corporate bribery and corruption.
• Representing the former director of a wealth management company in £14m (POCA 2002) confiscation proceedings.
• Assisting the FCA in a dual track Tier-1 investigation into systemic failings of a major global bank.
  Advising a global entity on sectoral sanctions regimes applicable to its international commercial dealings.
• Representing the director of a technology company against allegations of consumer fraud and money laundering.

Nick Hill practices in commercial litigation, with a focus on financial services and pensions law. His continued contribution to Lissack and Horlick on Bribery and Corruption evidences the range and impact of the Act. Recent Chambers & Partners recommendations have included that he is “a junior with significant expertise in financial services law”, “very technically minded” and “excellent with clients”. Similarly, the Legal 500 has described him as “a fantastic advocate”, “excellent with clients” and “enormously thorough and quick”.

Find Out More

If you would like to discuss any of the issues covered in this article please contact any of our authors directly or via their practice management team; David Smith on +44 (0)20 7427 4905 or Colin Bunyan on +44 (0)20 7427 4886.

External Publications 21 Oct, 2020