The Bribery Act — enforcement history and trends
England and Wales
The Bribery Act (“the Act”) was passed in 2010 and came into force in July 2011. The first case prosecuted under the legislation was in October 2011 and a total of 15 cases have been completed in all. While this is still a relatively small number of cases, there are some notable characteristics and trends we can observe:
The Act has primarily been used against individuals rather than companies
- Ten of the completed prosecutions have been against individuals (with 18 individuals receiving sentences) and five have been against companies.
- Only one large company (Rolls-Royce) has been subject to enforcement, by way of a Deferred Prosecution Agreement.
Resolution of corporate Bribery Act cases has been dominated by DPAs
- Of the five cases involving companies (all involving Section 7 offences), three were resolved by Deferred Prosecution Agreements.
- The case involving the largest scale bribery was resolved by a Deferred Prosecution Agreement.
- Only one company has sought to defend itself as having adequate procedures under Section 7 of the Act, but was unsuccessful in doing so.
UK cases still dominate and Section 6 has yet to be used in a prosecution
- 11 of the 15 cases have involved bribery within the UK.
- There have been no prosecutions under Section 6 of the Act (the specific offence of bribing foreign public officials).
- The extra-territorial reach of the Act has not yet been applied against non-UK based corporates.
What is still to be defined or tested?
- The Act had been in force for some three and a half years before the first completed prosecution for commercial bribery (against two individuals) in December 2014 and for almost four and a half years before the first action against a corporate in November 2015.
- We still await a large scale contested case which provides judicial comment on key matters of interpretation of the Bribery Act such as the test of adequate procedures, the definition of associated person, and the ability to prosecute overseas organisations carrying on business or part of a business in the UK.
Scotland has adopted a different enforcement regime to England and Wales in respect of corporate commercial bribery, relying on civil remedies under Section 5 of the Proceeds of Crime Act but referencing the Bribery Act to provide the structure for examining activity.
The Scottish authorities have completed two corporate cases since the Bribery Act came into force, both citing the Section 7 corporate offence of failing to prevent bribery and one of them citing Section 1, the payment of bribes. Both cases have a claim to fame: one was the first ever citation of a Section 7 breach and the other was the first time a corporate was charged with a Section 1 offence.
The OECD Working Group report on UK enforcement issued in March 2017 recommended: that UK law enforcement authorities, particularly in Scotland, exercise considerable caution in deciding whether to resolve foreign bribery cases through civil settlement to ensure cases result in effective and dissuasive sanctions; and that Scotland consider adopting a Deferred Prosecution Agreement regime. These points were noted in the UK Anti-Corruption Strategy published in December 2017.
The Scottish authorities successfully prosecuted an individual under the Bribery Act (for a Section 2 offence) in April 2018. This was in the context of corrupt behaviour on a jury rather than commercial bribery.
The evolution of Bribery Act enforcement 2011 to 2018
A summary timeline of Bribery Act enforcement is set out here: