The UK is a signatory to several international conventions that touch upon anti-bribery and anti-corruption matters. Those most directly relevant are as follows.

• The OECD’s Anti-Bribery Convention (ratified in 1998) (full title: Convention on Combating Bribery of Foreign Public Officials in International Business Transactions).
• The UN Convention Against Corruption (signed in 2003 and ratified in 2006).
• The Council of Europe’s Criminal Law Convention on Corruption (signed in 1999 and ratified in 2003).
• The Additional Protocol to the Criminal Law Convention on Corruption (signed and ratified in 2003).

The UK is also a signatory to the Civil Law Convention on Corruption (signed in 2000; not yet ratified). The UK’s obligations under these conventions, in particular the OECD convention, were the catalyst for the revision and modernisation of domestic anti-bribery laws that culminated in the Bribery Act 2010.

The OECD’s Glossary of International Standards in Criminal Law (2008) points out that the OECD, Council of Europe, and UN Conventions do not give a criminal law definition of “corruption”, but instead establish “offences for a range of corrupt behaviour”. The OECD cites a general policy definition of corruption as “abuse of public or private office for personal gain” but goes on to say that “apart from this general definition, there are as many different definitions of corruption as there are manifestations of the problem itself”.

Transparency International’s 2016 analysis of the UK’s anti-corruption laws identified 22 types of corruption, only some of which were covered by UK legislation.

• Bribery.
• Corrupt hiring practices.
• Bribes masked as commissions.
• Bribes disguised as charitable donations.
• Small bribes and facilitation payments.
• Excessive hospitality as bribery.
• Direct cash payments as bribes.
• Electoral treating.
• Electoral bribery.
• Disproportionate favours.
• Undeclared conflicts of interest.
• Fraud and embezzlement.
• Electoral fraud
• Undue electoral influence.
• Whistle-blowing.
• Abuse of function.
• Money laundering.
• Trading in influence.
• Prohibited political contributions.
• Lobbying abuse.
• Cronyism and nepotism.
• Revolving door abuse.

The main anti-bribery legislation is contained in the Bribery Act 2010, which applies to conduct after 1 July 2011 (when the Act came into force). Conduct that took place before that date is covered by the predecessor legislation of the Prevention of Corruption Acts 1889 to 1916. Whilst the Bribery Act is comprehensive and covers several types of corruption, it does not extend to all types of conduct that may fall under the wider umbrella of corruption listed above. Other corrupt conduct is covered by an incomplete and piecemeal mix of statutory and common law offences, for example:

• misconduct in public office – a wilful breach of duty by a public officer amounting to an abuse of the public’s trust (an offence at common law);
• corrupt or other improper exercise of police powers and privileges (Section 26 of the Criminal Justice and Courts Act 2015);
• multiple offences relating to political donations (see the Political Parties, Elections and Referendums Act 2000);
• giving/receiving inducements or rewards for procuring honours (Section 1 of the Honours (Prevention of Abuses) Act 1925);
• failures of a member of local authority to declare pecuniary interest (Section 34 of the Localism Act 2011);
• providing false or misleading information for allowance claims by members of the House of Commons (Section 10 of the Parliamentary Standards Act 2009); and
• offences under the Fraud Act 2006, Theft Act 1968, and the Proceeds of Crime Act 2002 (and the common law offence of cheating the public revenue) can be used to prosecute offences relating to corrupt obtaining and disposal of funds and goods.

Aside from criminal offences, there are various public sector codes and disclosure requirements that do not create criminal offences but do create obligations for those in public roles not to engage in potentially corrupt activity and to declare conflicts of interest. For example, Members of Parliament are subject to the Ministerial Code, and civil servants are subject to the Civil Service Code (which has its statutory basis in the Constitutional Reform and Governance Act 2010).

As Transparency International have observed, the UK’s coverage of activities that could be considered “corrupt” is somewhat patchy. For example, there are no legal provisions prohibiting cronyism and nepotism.

It is unusual in the law of England & Wales for the government to produce guidelines on the interpretation and enforcement of criminal offences. However, Section 9 of the Bribery Act 2010 imposes a duty on the Secretary of State to publish guidance about the procedures that relevant commercial organisations can put in place to prevent persons associated with them from committing bribery – the statutory defence to the much-heralded corporate “failure to prevent” offence under Section 7 of the Act.

The Bribery Act guidance provides assistance with the statutory defence under subsection 7(2) that a relevant commercial organisation may prove that it had in place “adequate procedures” designed to prevent persons associated with it from committing bribery. Similar duties on the government to issue guidance appear in relation to the new corporate offence of failure to prevent fraud (Section 199 of the Economic Crime and Corporate Transparency Act 2023) and the corporate offences of failure to prevent the facilitation of tax evasion (Sections 45 and 46 of the Criminal Finances Act 2017), which have similar “reasonable procedures” statutory defences. The Bribery Act guidance indicates that adequacy of an organisation’s anti-bribery procedures should be based around six core principles.

• Proportionate procedures.
• Top-level commitment.
• Risk assessment.
• Due diligence.
• Communication (including training).
• Monitoring and review.

The Bribery Act guidance sets out the government’s policy behind the Section 7 failure to prevent offence and provides some guidance on the offences under Section 1 (bribing another) and Section 6 (bribing a foreign public official) in relation to the vexed issues of legitimate hospitality and promotional activities.

The guidance states that it is intended to help commercial organisations to understand procedures they can put in place to prevent bribery, but prosecutors will also have regard to the adequacy of those procedures when, for example, making decisions to charge or to enter into Deferred Prosecution Agreement negotiations (see more further on in this chapter). The Director of Public Prosecutions and the Director of the Serious Fraud Office have also published their own joint prosecution guidance on Bribery Act offences, including factors for and against the bringing of a prosecution.

Whilst there have been several important developments in the field of white-collar, financial, and corporate crime in recent years, there have been few amendments to the Bribery Act 2010. The most significant development affecting offences of bribery is likely Section 196 of the Economic Crime and Corporate Transparency Act 2023, which amends the identification principle governing corporate liability for substantive offences of bribery (see further details later in this chapter).

In 2020 the Law Commission proposed reform of the common law offence of misconduct in public office, with two new statutory offences of corruption in public office and breach of duty in public office. However, these proposals have not yet been acted upon by the legislature.

The Bribery Act 2010 provides a comprehensive set of offences covering various forms of conduct that fall within the ambit of bribery.

The General Bribery Offences

Section 1 – offences of bribing another person

The Section 1 offence sets out the “active” offence of bribing another person. The Act sets out two cases (or scenarios) in which a person would be guilty of an offence of bribery of another.

• Case 1 – where a person offers, promises, or gives a financial or other advantage to another person, and intends the advantage:
1. to induce a person to perform improperly a relevant function or activity; or
2. to reward a person for the improper performance of such a function or activity.
• Case 2 – where a person offers, promises, or gives a financial or other advantage to another person, knowing or believing 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 who is to perform, or has performed, the function or activity concerned. In cases 1 and 2 it does not matter whether the advantage is offered, promised, or given by the person directly or through a third party.

Section 2 – offences relating to being bribed

The Section 2 offence sets out the “passive” offence of being bribed. The Act sets out four cases (numbered sequentially following Section 1) in which a person would be guilty of an offence of being bribed.

• Case 3 – where a person 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 that person or another person).
• Case 4 – where a person requests, agrees to receive, or accepts a financial or other advantage, and the request, agreement, or acceptance itself constitutes the improper performance by that person of a relevant function or activity.
• Case 5 – where a person requests, agrees to receive, or accepts a financial or other advantage as a reward for the improper performance (whether by that person or another person) of a relevant function or activity.
• Case 6 – where, in anticipation of or in consequence of a person requesting, agreeing to receive, or accepting a financial or other advantage, a relevant function or activity is performed improperly by that person or by another person at the first person’s request or with the first person’s acquiescence.

In cases 4–6, it does not matter whether the person knows or believes that the performance of the function or activity is improper. In case 6, where a person other than the recipient of the bribe is performing the function or activity, it does not matter whether that other person knows or believes that the performance of the function or activity is improper.

The “relevant function or activity” to which a bribe relates

As can be seen from Section 3 of the Act, the general offences of bribery have an extremely broad scope and can be committed in both public and private/commercial spheres.

The function or activity to which a bribe relates is relevant if it is:

• any function of a public nature;
• any activity connected with a business;
• any activity performed in the course of a person’s employment; or
• any activity performed by or on behalf of a body of persons (whether corporate or unincorporate).

In addition, one of the following conditions must also be met.

• A person performing the function or activity is expected to perform it in good faith.
• A person performing the function or activity is expected to perform it impartially.
• A person performing the function or activity is in a position of trust by virtue of performing it.

It should be noted that the relevant function or activity need not have a connection to the UK and can be performed in a country or territory outside the UK.

The test for whether the relevant function or activity has been performed improperly (set out in Sections 4 and 5 of the Act) is what would be expected by a reasonable person in the UK in relation to the performance of that function or activity. The Act specifically disregards local custom or practice if that relevant function or activity is not subject to UK law, save for where it is permitted or required by the written law of another country. This is significant, as it deliberately attempts to negate any argument that the payment of a bribe was necessary because such behaviour is “customary” in another part of the world.

Hospitality and facilitating payments

The general offences of bribery have no de minimis provisions built into them, and there is no provision in the law that protects hospitality. As such, even the smallest gratuity could technically be caught by the Act as a bribe. However, to constitute a bribe, it would still be necessary to show that such hospitality was intended to induce conduct that amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust.

The Bribery Act was not intended to criminalise bona fide hospitality or promotional expenditure which is reasonable and proportionate. There is an expectation that promotional expenses are an important part of doing business if done in an appropriate way. However, the Joint Prosecution Guidance for the Bribery Act 2010 states: “the more lavish the hospitality or expenditure (beyond what may be reasonable standards in the particular circumstances) the greater the inference that it is intended to encourage or reward improper performance or influence an official. Lavishness is just one factor that may be taken into account in determining whether an offence has been committed. The full circumstances of each case would need to be considered. Other factors might include that the hospitality or expenditure was not clearly connected with legitimate business activity or was concealed”.

The Bribery Act guidance gives the following example: “an invitation to foreign clients to attend a Six Nations match at Twickenham as part of a public relations exercise designed to cement good relations or enhance knowledge in the organisation’s field is extremely unlikely to engage section 1 as there is unlikely to be evidence of an intention to induce improper performance of a relevant function”.

Unlike the US Foreign Corrupt Practices Act [FCPA], the Bribery Act also makes no allowance for facilitating or expediting payments (sometimes called “grease” payments). The guidance to the FCPA describes facilitating payments as payments made to further routine governmental action that involves non-discretionary acts, such as processing visas, supplying utilities, providing police protection, or providing mail services. Such facilitating payments may well be caught by the provisions of the Bribery Act if, as with hospitality payments, the requisite intention can be established.

Bribery of Foreign Officials

Section 6 – the offence of bribery of a foreign public official

Section 6 of the Bribery Act provides for a discrete offence of bribery of foreign officials.

A person who bribes a foreign public official is guilty of an offence if their intention is to influence the official in their capacity as a foreign public official. The person must also intend to obtain or retain business or an advantage in the conduct of business.

The person bribes a public official if:

• the person, directly or through a third party, offers, promises, or gives any financial or other advantage to the official, or to another person at the official’s request or with the official’s assent or acquiescence; and
• the public official 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 meaning of foreign public official

A “foreign public official” is an individual who satisfies at least one of the following conditions.

• Holds a legislative, administrative, or judicial position of any kind outside the UK.
• Exercises a public function for or on behalf of a country outside the UK, or for any public agency or public enterprise of that country.
• Is an official or agent of a public international organisation.

As such, employees of state-controlled companies can fall within the definition of a foreign public official. This is significant, as many recent international corporate corruption cases have involved the bribery of individuals in fully or partially state-controlled companies (see, for example, the recent prosecution of Glencore Plc that involved, inter alia, the bribing of individuals in the Nigerian National Petroleum Company).

Failure to Prevent Bribery

Section 7 – the corporate offence of failure to prevent bribery

Perhaps the most groundbreaking aspect of the Bribery Act 2010 was the creation of a specific corporate offence of failure to prevent bribery.

A “relevant commercial organisation” is guilty of an offence if a person associated with it bribes another person intending to obtain or retain business for the commercial organisation or to obtain or retain an advantage in the conduct of business for the commercial organisation.

The bribe itself is defined as something that would be an offence under Section 1 or 6 (see above) and it does not matter whether the person associated with the commercial organisation had been prosecuted for that offence or not.

It is a defence for the commercial organisation to show that it had in place adequate procedures designed to prevent persons associated with the commercial organisation from undertaking such conduct. The Secretary of State has issued guidance as to what constitutes “adequate procedures” (see above).

A “relevant commercial organisation” for the purposes of this offence must satisfy at least one of the following conditions:

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

This “failure to prevent” model of corporate liability has since been replicated in other parts of criminal law (see above).

Jurisdiction

Section 12 of the Bribery Act sets out the very broad extra-territorial reach of the offences under Sections 1, 2, 6 and 7.

Offences of bribery, being bribed and bribery of a public official can be prosecuted in the UK even if no act or omission that forms part of an offence under Section 1, 2 or 6 takes place in the UK. This can happen if the act or omission would have formed part of the offence had it been done or made in the UK and the person had a “close connection” with the UK. A person has a close connection with the UK if, at the time of the acts or omissions, they satisfied at least one of a number of conditions, including (non-exhaustively) the following.

• They were a British citizen.
• They were an individual ordinarily resident in the UK.
• They were a body incorporated under the law of any part of the UK.

The Section 7 corporate offence of failure to prevent bribery is committed irrespective of whether the acts or omissions which form the offence took place in the UK or elsewhere. The jurisdictional link to the UK is set out in the definition of “relevant commercial organisation” (see above).

There is no specific offence of influence peddling in the law of England & Wales. However, as set out above, various other statutes maybe used to prosecute such behaviour – generally defined as the giving of an undue advantage in order that a person abuses their influence to obtain from an administration or public authority an undue advantage for another.

By way of examples, such conduct may fall under any of the offences of the Bribery Act if it involves the exchange of a financial or other advantage for improper performance of a role. If such conduct involves the concealment of the receipt of an improper donation by a member of a political party, it may constitute an offence under Section 61 of the Political Parties, Elections and Referendums Act 2000.

The principal offence relating to inaccurate corporate books and records is the offence of false accounting under Section 17 of the Theft Act 1968. A person commits an offence of false accounting if they dishonestly, with a view to gain for themselves or another or with the intent to cause loss to another:

• destroy, deface, conceal, or falsify any account or any record or document made or required for any accounting purpose; or
• in furnishing information for any purpose, produce or make use of any account, or any such record or document made for any accounting purpose, knowing that it is or may be misleading, false, or deceptive in a material particular.

There are numerous offences under the Companies Acts 1985 and 2006 relating to the proper administration and record keeping for companies in the UK. It is not possible to give a full breakdown of all such offences here, but the following are particularly pertinent.

• Under Section 450 of the Companies Act 1985 it is an offence for an officer of a company to destroy, mutilate or falsify a document affecting or relating to the company’s property or affairs, or to make a false entry in such a document, unless they can show that they had no intention to conceal the state of affairs of the company or to defeat the law.
• Under Section 387 of the Companies Act 2006, if a company fails to comply with its duties to keep adequate accounting records, every officer in default commits an offence.

There are no specific offences relating to the misappropriation of funds by a public official, the unlawful taking of interest by a public official, embezzlement of public funds by a public official, or favouritism by a public official. Such conduct may be prosecuted under other, more general, criminal offences. For the avoidance of doubt, embezzlement is a common law offence in Scotland (which has a separate and distinct legal system to England & Wales), but that will not be covered here.

Misappropriation of funds and embezzlement of public funds would likely be covered by the general fraud and theft offences under Section 1 of the Fraud Act 2006 and Section 1 of the Theft Act 1968. One of the species of fraud as set out in Section 4 of the Fraud Act involves fraud by abuse of a position. A person commits fraud by abuse of position if they (by act or omission):

• occupy a position in which they are expected to safeguard, or not to act against, the financial interests of another person;
• dishonestly abuse that position; and
• intend, by means of the abuse of that position, to make a gain for themselves or another, or to cause loss to another or expose another to a risk of loss.

The general common law offence of Misconduct in Public Office can also cover the types of conduct set out above. An offence is committed by a public official if they, acting in their capacity as a public official, wilfully neglect to perform their duty or wilfully misconduct themselves, to such a degree that it amounts to abuse of the public’s trust in them, without reasonable excuse or justification (see Attorney-General’s Reference (No 3 of 2003) [2004] EWCA Crim 868).

The provisions of the Bribery Act make it clear that offences of bribery can be committed either directly or through third parties.

Offences of Misconduct in Public Office may be committed by third parties by aiding or abetting a principal’s offence, or as a conspirator with the public officer in the commission of the offence (see R v Chapman and Others [2015] EWCA Crim 539).

In more general terms, there is no set rule in England & Wales whether criminal offences can be committed through third parties or not. It is necessary to look at the law providing for the offence and its factual circumstances, and then consider whether the secondary party provisions of Section 8 of the Accessories and Abettors Act 1861 may apply. A third party may be charged with the inchoate offences of conspiracy (Sections 1 and 1A of the Criminal Law Act 1977) or encouraging/assisting an offence (Sections 44–46 of the Serious Crime Act 2007).

The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 set up the Office of the Registrar of Consultant Lobbyists, which regulates lobbying activities. Any person or organisation carrying out the business of consultant lobbying must be entered in the Register of Consultant Lobbyists. A person carries on the business of consultant lobbying if, in the course of business and in return for payment, the person makes communications on behalf of another person or persons to a Minister of the Crown or permanent secretary, relating to:

• the development, adoption, or modification of any proposal of the government to make or amend primary of subordinate legislation;
• the development, adoption, or modification of any other policy of the government;
• the making, giving, or issuing by the government of, or the taking of any other steps by the government in relation to any contract or other agreement, any grant or other financial assistance, or any licence or other authorisation; and
• the exercise of any other function of the government.

A person is prohibited from carrying on the business of consultant lobbying unless they are entered in the Register. Breach of that prohibition is an offence under Section 12 of the Act.

For summary offences (those triable only in the summary jurisdiction of the Magistrates’ Courts), an information (ie, charge) must be served on the Magistrates’ Court within six months of the time that the offence was committed. However, offence-creating statutes may specify a different starting point, such as the date when the prosecutor has sufficient evidence to justify a charge (see, for example, Section 1128 of the Companies Act 2006).

Otherwise, there is no statute of limitations or other overarching limitation rule in the criminal law of England & Wales. A prosecution for indictable offences (those triable in the jurisdiction of the Crown Court) can be commenced at any time and address offending conduct of any age, but undue delay in bringing a case can, in some circumstances, amount to an abuse of process.

The General Rule on Jurisdiction

The criminal courts have the jurisdiction to try any offence under the law of England & Wales, wherever in the world that offence may have been committed. Whether the offending conduct amounts to a criminal offence depends upon the extraterritorial provisions of the law in question.

The General Rule on Territoriality

The general rule is that a criminal offence under the law of England & Wales applies within the realm of England & Wales only. For a criminal offence to have extraterritorial effect in law, this must be specifically provided for by statute. However, R v Smith (Wallace Duncan) (No 4) [2004] EWCA Crim 631 established that a crime may be regarded as having been committed in England & Wales if a “substantial part” of the offence took place within the jurisdiction. There are specific rules governing cross-frontier inchoate offences, such as conspiracy and attempt.

Extraterritorial Effect of the Bribery Act

As set out above, the Bribery Act has broad extraterritorial reach, specifically provided for in the statute. In relation to Section 1, 2 and 6 offences, conduct anywhere in the world is justiciable in England & Wales if the person in question satisfies the “close connection to the UK” test. The Section 7 offence covers conduct anywhere in the world if the company (or partnership) involved is incorporated (or formed) in the UK or carries on a business practice there.

Corporate Criminal Liability Generally

In England & Wales, corporations can be liable for criminal offences of strict/absolute liability as well as those that require a “fault” element (eg, intention, recklessness, knowledge or negligence). Where an offence involves a requisite fault element, a corporation can be held criminally liable by way of the “identification principle” for acts and omissions committed by a natural person if that person is “identified” with the corporate (ie, the individual is the “directing mind and will” of the corporate).

The long-standing test by which individuals could be “identified” with a corporate was set out in Tesco Supermarkets v Nattrass [1972] AC 153. Put briefly, the person must be in such a position that they are properly to be regarded as exercising the powers of the corporate and not merely acting as the corporate’s servant or agent. Generally, a corporate’s constitution and its memorandum/articles of association would define which individuals exercise the power of the corporate, but other factors could have an impact, such as seniority of the individual, delegation of powers and chains of command within the corporate (the “primary rules of attribution”). In addition, a corporate could only be liable for an act of the relevant individual that is within the “scope” of their office with the company.

The test in Tesco Supermarkets v Nattrass has been criticised for its tendency to restrict the identification principle to a small subset of people, limiting significantly the acts and omissions for which a corporate could be held criminally liable. In Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500, the Privy Council devised further “special” rules of attribution to sit alongside the primary rules. Essentially, the courts could look at the policy behind legislation to determine who, as a matter of law, should be taken to be capable of being identified with the corporate beyond those identified by the primary rules of attribution. In this way, the individuals through whom liability could attach might be expanded to a wider range of employees, servants, or agents. The question of when it is appropriate to go beyond the primary rules of attribution was addressed in St Regis Paper Co Limited [2011] EWCA Crim 2527.

Despite the criticism of the test in Tesco Supermarkets v Nattrass, it was affirmed as the relevant test in Serious Fraud Office v Barclays plc and Another [2018] EWHC 3055 (QB). In that case, the High Court also recognised further principles that applied when considering the identification principle, including that a corporate may delegate its powers and responsibilities to committees. The High Court acknowledged that the primary rules of attribution were very restrictive (perhaps disproportionately so when dealing with the operations of large corporates) but that there was always the option for further statutory offences to be created.

The Section 7 Bribery Act corporate offence of failure to prevent bribery is a good example of the creation of a specific corporate “failure to prevent” offence that is not dependent on the liability of an individual “identified” with it.

“Senior Manager” Modification Under the Economic Crime and Corporate Transparency Act 2023

Whilst the identification principle has survived recent calls for reform, it has been modified recently by Section 196 of the Economic Crime and Corporate Transparency Act 2023, that provides if a “senior manager” of a corporate acting with the actual or apparent scope of their authority commits a relevant offence, the corporate is also guilty of the offence. This currently only applies to a specific list of economic crimes, but that list includes several offences that may be used to prosecute types of corruption, such as cheating the public revenue, theft, false accounting, money laundering, fraud, and bribery (Sections 1, 2 and 6).

Relationship Between Corporate Criminal Liability and Liability of Individuals

Subject to the rules outlined above, a corporate can be prosecuted alongside individuals for the same offence. A corporate can be prosecuted alongside its own directors, even if those directors are the directing wills and minds through which the corporate’s liability attaches. An individual can be liable as a secondary party under Section 8 of the Accessories and Abettors Act 1861 to an offence committed by a corporate, and vice versa. There is no rule or policy dictating whether the prosecution of an individual or a corporate takes primacy.

Individuals and corporates can be charged with conspiracy, although a corporate cannot conspire with an individual if that individual is the directing will and mind through which the corporate’s liability attaches.

If a corporate is liable for a criminal offence, it does not necessarily follow that its officers, agents or employees will also be liable, nor does the corporate’s liability necessarily prevent or extinguish the liability of individuals. Some statutes have specific provisions detailing the liability of associated individuals, such as employees, directors or managers, where a corporate is criminally liable (eg, where the corporate has committed the offence with the consent or connivance of the individual).

Anti-Corruption Offences and Corporate Criminal Liability

The standard rules of corporate criminal liability apply to all criminal offences unless specified otherwise, including those that may cover various types of corruption (although a company cannot be liable for an offence with a mandatory sentence of imprisonment, such as murder). As such, corporates may be guilty of such offences if the identification principle is satisfied.

The offences of bribery under Sections 1, 2 and 6 of the Bribery Act now have an expanded identification principle covering “senior managers” (see above), but it remains to be seen whether this expansion of the principle will lead to more prosecutions of corporates for these substantive bribery offences or whether prosecutors will continue to favour the Section 7 failure to prevent offence, which does not have to rely on the identification principle at all.

It is not possible to set out here all the possible general defences available to criminal offences in England & Wales, nor all the specific or nuanced defences that may apply to the myriad offences that cover various types of corruption.

Highlighting the Bribery Act offences, it is a defence for a corporate charged with an offence of failure to prevent bribery to show that it had adequate procedures in place to prevent such conduct (discussed in more detail previously in this chapter). Under Section 13 of the Bribery Act it is a defence to conduct charged under Section 1 and Section 2 of the Act for a person to prove that the 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 engaged on active service.

Section 13 of the Bribery Act does not provide a defence to conduct charged under Section 1 of the Act if that same conduct would also be an offence under Section 6 (bribing a foreign public official).

As set out above, there are no de minimis exceptions for offences under the Bribery Act or, indeed, the other potential offences outlined above that cover various types of corruption.

Save for the limited extent to which the Bribery Act’s specific defences apply (as set out in 4.1 Defences) there are no sectors or industries exempt from the offences identified previously.

The criminal law of England & Wales does not have safe harbour or amnesty programmes. If an individual self-reports corruption, or is a “whistle-blower”, they may avoid prosecution or, if prosecuted, receive a significant reduction of any potential sanction.

For corporates, if a self-report is made to the Serious Fraud Office (SFO) (or, indeed, the Crown Prosecution Service (CPS)) in respect of bribery offences and remediation efforts are demonstrated, this may have a significant bearing on whether the SFO chooses to pursue a prosecution against the corporate. If a corporate wishes to enter into negotiations over a Deferred Prosecution Agreement, it will usually be expected to have self-reported and/or shown an exceptional level of co-operation with authorities and significant remedial efforts.

As discussed, a company charged with Section 7 failure to prevent bribery can avail itself of an adequate procedures defence, but this does not provide “safe harbour” as such.

As discussed, it is not possible here to set out all of the penalties upon conviction for all the offences that could be used to cover the various types of corruption.

With regard to the offences under the Bribery Act:

• An individual guilty of an offence under Sections 1, 2 or 6 on summary conviction can receive a prison term of up to six months for one offence or 12 months (for more than one offence). NB: It is likely that the rules relating to maximum sentences in the Magistrates’ Court will soon change as a result of impending government proposals, but at the time of writing these rules apply.
• An individual guilty of an offence under Sections 1, 2, or 6 convicted on indictment can be imprisoned for up to ten years, or receive a fine, or both.
• A corporate body on conviction of an offence under Sections 1, 2, 6 or 7 can receive an unlimited fine.

Guidelines on sentencing in England & Wales are issued by the Sentencing Council. Whilst sentencing guidelines now cover a large number of the more commonly encountered criminal offences, there are many more offences that are not covered (including many of those that cover types of corruption). The courts are obliged to consider applicable sentencing guidelines when passing sentence.

There are specific guidelines for offences of bribery under the Bribery Act – one covering individuals, the other covering corporates. No minimum sentences operate. Previous relevant convictions are an aggravating factor and increase the seriousness of offending and therefore the likely sentence.

There is no positive duty for individuals or companies to disclose bribery and corruption violations.

As highlighted previously, corporates accused of offences under the Bribery Act have significant incentives to self-report, including the ability to persuade prosecuting authorities either not to prosecute or to enter into Deferred Prosecution Agreement negotiations, and the reduction of penalties on conviction.

Deferred Prosecution Agreements are not available for individuals. There are incentives for individuals to self-report in the form of reduction of penalties on conviction. Individuals may also seek to avail themselves of the “assisting offender” provisions under Sections 71 and 72 of the Serious and Organised Crime and Police Act 2005 (immunity from prosecution and restricted use undertakings) and Sections 74 and 388 of the Sentencing Act 2020 (reduction and review of sentence).

Individuals and corporates who wish to self-report can approach the relevant prosecuting or regulatory authority, such as the FCA, directly or through a proxy, who is usually a lawyer, to provide information upon wrongdoing. Individuals may be considered to be statutory whistle-blowers in such a procedure if they expose wrongdoing at their workplace that it is in the “public interest” to know (see 6.4 Protections Afforded to Whistle-Blowers and 6.5 Incentives Provided to Whistle-Blowers for more information concerning whistle-blowers).

Workers in public, private or voluntary sectors who act as statutory whistle-blowers under the Public Interest Disclosure Act (PIDA) 1998 are protected from unfair dismissal or detrimental treatment so long as the matter upon which they inform is in the public interest. The protections under PIDA 1998 do not apply to the self-employed, volunteers, armed forces, or intelligence services. The PIDA 1998 protections continue after the whistle-blower has ceased their work. Detrimental treatment is a widely drawn phrase that covers negative treatment, bullying or harassment. Other whistle-blowers are informants who must negotiate their protections and benefits from their disclosures as they interact with the law enforcement or regulatory agencies.

There are currently no provisions in place in England & Wales for whistle-blowers to receive financial incentives for reporting bribery and corruption. This is in contrast to the US, where whistle-blowers may receive a percentage of money recovered from a corporate on conviction or after a plea deal. A similar system has been mooted for England & Wales, but nothing more concrete has materialised. The new Director of the SFO has publicly announced support for a whistle-blower programme and indicated that he intends to use it as a strategy in future investigations.

Enforcement of anti-bribery and anti-corruption laws are primarily a criminal matter in England & Wales though some civil or regulatory sanctions may apply where there are breaches of relevant codes of practice that cover types of corruption that do not amount to criminal offences. States that have been subject to the bribery and corruption of their officials may take civil proceedings and seek damages against the corporate involved.

As was seen relatively recently in Federal Republic of Nigeria v SFO and Glencore Energy UK Ltd [2022] EWCR 2, there is basically no scope for a non-party to make an application for compensation following a criminal conviction if a prosecutor has chosen not to make such an application. In that case, the Federal Republic of Nigeria attempted to apply for a compensation order for offences of bribery of Nigerian officials committed by the corporate Glencore after the SFO had declined to do so as part of the corporate’s sentencing. In any event, if an application for compensation were to involve complex explorations of facts and law (including the calling of further evidence) it is unlikely that a criminal court would undertake that exercise (see R v Bewick [2007] EWCA Crim 3297).

Enforcement of high-level bribery and corruption is led by the Serious Fraud Office which is a non-ministerial government department. The SFO may investigate any suspected offence which appears to involve serious or complex fraud, bribery or corruption. Cases of bribery which are not serious or complex can also be enforced by the Crown Prosecution Service which is the principal agency for conducting criminal prosecutions in England & Wales, although the CPS have recently concluded an arguably complex Deferred Prosecution Agreement with Entain plc relating to international corruption.

Both the Serious Fraud Office and the Crown Prosecution Service can investigate offences that occur both inside England & Wales as well as outside the jurisdiction if they meet the tests for jurisdiction and extraterritoriality (discussed previously in this chapter). The SFO in particular works closely in conjunction with other international corruption enforcement agencies such as the US Department of Justice and there is frequent sharing of information between national enforcement agencies.

Deferred Prosecution Agreements were introduced in February 2014 through the Crime and Courts Act 2013 and can be used for bribery as well as other white-collar criminal offences committed by corporates. They are available to both the Crown Prosecution Service and the Serious Fraud Office. If a DPA is in force it means a company is still charged with a criminal offence but as long as the agreement is approved by a judge proceedings are automatically suspended.

There are a number of factors that the prosecution agencies will consider when deciding whether to enter into a DPA. For example, having a pro-active compliance programme at the time of offending. Weight may also be given to companies that self-report, and this can be either a mitigating or aggravating feature depending on the information provided to the prosecutor. If the company withholds information which would compromise the investigation of any individuals involved this would be a factor pointing towards prosecution. Similarly, early self-reporting could be a mitigating factor, but the prosecutor will consider to what extent not self-reporting earlier might have jeopardised any investigation into individuals or into the company itself. The prosecutor will look at any internal investigation which has been conducted by the company to determine whether such an investigation may also have undermined any subsequent prosecution (such as whether there has been any potential for fabrication or the destruction of relevant material).

For a DPA to be agreed the company may be required to accept conditions in the future management of its business including payment of a financial penalty and/or compensation, requirements for future co-operation with the subsequent prosecution of any individuals at the company, co-operation with other national enforcement agencies (in the case of multi-jurisdictional offending), monitorships, and disgorgement of profits.

In 2022 international commodities trader Glencore Energy UK Ltd pleaded guilty to bribery across several countries. The company was fined more than GBP180 million and given a confiscation order of over GBP93 million after an SFO investigation showed it paid USD29 million to gain preferential access to oil in Africa. The case represented the largest ever fine in an SFO case. The case also marked the first ever use of substantive bribery offences for a company, indicating that senior individuals at the company were actively involved in bribery rather than the company merely failing to prevent it. The company was convicted of five substantive charges under Section 1 of the Bribery Act and two under the Section 7 failure to prevent bribery offence. In 2024 six former Glencore employees of the company appeared in court in relation to the bribery offences but they are not due to be tried until 2027.

In December 2023 the CPS entered into its first ever DPA (previous DPAs had been limited to the SFO) with Entain plc, a global online sports betting and gaming business. Entain plc agreed to pay a financial penalty plus disgorgement of profits totalling GBP585 million, as well as making a charitable donation of GBP20 million.

Companies who have been convicted of bribery have been sentenced to large fines (such as the ones outlined in the Glencore case discussed in 7.5 Recent Landmark Investigations or Decisions) and those that have entered into DPAs have paid large financial penalties – in the Airbus DPA, the company was subject to a financial penalty of GBP983.97 million in the UK, as part of a EUR3.6 billion global settlement with several national enforcement agencies.

In November 2023, five defendants received sentences ranging from nine months’ imprisonment (suspended) to 28 months’ imprisonment for offences of bribery. Around GBP175,000 was paid in bribes to Cardiff Council staff by A&T Waste Management for the deliberate misrepresentation of amounts of waste being deposited, leading to losses of GBP417,000 to the council and a benefit of GBP238,000 to the company.

In September 2024 a former Metropolitan police officer was given a sentence of 40 months’ imprisonment after pleading guilty to three charges of misconduct in public office, relating to accessing police records and passing on sensitive information, stealing items from a member of the public, and using deceased peoples’ bank details.

There are no duties on companies to set up a compliance programme to prevent corruption. However, if companies fail to put adequate procedures in place to prevent bribery, they will not have a defence if the company is subsequently charged under Section 7 of the Bribery Act with failure to prevent bribery (discussed previously in this chapter).

As set out earlier in this chapter, the only formal guidance on what constitutes “adequate procedures” for the purposes of Section 7 of the Bribery Act was released by the Ministry of Justice which is a government department and not an enforcement body. There are no further guidelines on compliance issued by the enforcement agencies. However, there is guidance, issued by the enforcement bodies, on their approach to deciding whether to bring a prosecution under the Act, which includes a focus on a company’s history of compliance and current compliance regimes.

Monitorships can be imposed upon a corporate as part of the conditions of a Deferred Prosecution Agreement. They cannot be imposed by a court as part of a sentence on conviction. There have been instances in the past of a Crown Court approving of monitorships agreed between the prosecution and defence on a guilty plea for corruption offences, but such agreements attracted significant judicial criticism in R v Innospec (pre-DPA regime created by the Crime and Courts Act 2013).

Monitorships can be imposed as part of a Serious Crime Prevention Order pursuant to Section 19 of the Serious Crime Act 2007 (essentially a civil application), but such an order can only be granted if there are reasonable grounds to believe that such an order would protect the public by preventing, restricting, or disrupting involvement of the corporate in serious crime in England & Wales.

The Bribery Act was scrutinised by the UK Parliament’s House of Lords Select Committee in March 2019. The Committee was largely positive about the Act stating that it had been widely praised. Some of the committee’s suggestions included that power of the Directors of the enforcement bodies should be delegated so that prosecutions could be initiated by officials at a lower level. The current requirements is for prosecutions to be initiated only with the written consent of one of the Directors.

The Committee concluded that the government’s guidance on the boundary between bribery and legitimate corporate hospitality was as clear as can be expected. However, the Committee invited the Ministry of Justice to consider stating clearer examples of what might constitute acceptable corporate hospitality, as the Act may have had an overly deterrent effect.

The Committee also suggested that the guidance on the defence for the failure to prevent bribery offence be expanded to suggest procedures which are likely to provide a good defence.

The SFO has recently had some modifications made to its investigatory powers but, aside from those relatively minor issues, there do not appear to be any imminent likely changes to the legislation that underpins it (similarly so with the CPS).

The SFO is constantly the subject of scrutiny about its effectiveness and speculation about its existence. This is no doubt due in part to the nature of the cases it investigates, the press and political pressure if those cases fail, and the cadres of well-resourced white-collar defence lawyers whose job it is to put the organisation under the microscope. It remains to be seen whether such speculation about the SFO’s future translates into changes in its structure, powers or policies.