The Bribery Act arguably establishes the world’s toughest anti-corruption regime. It applies to all UK corporates, but also, in some cases, to any other corporates with a business presence in the UK. The Act creates a new strict liability criminal offence for such corporates where someone performing services on their behalf, anywhere in the world, commits an act of bribery in the obtaining or retaining of business or a business advantage for them.
One area of particular uncertainty is when a foreign corporate will be subject to the jurisdiction of the corporate offence under section 7 – i.e. what degree of presence in the UK is required.
Although the Government has indicated in its Guidance on putting in place “adequate procedures” to prevent bribery under the Act (click here to view the Guidance how it intends the Act should apply in this regard), questions still remain as to the scope of the Act in practice and the status of that guidance. For example, the Act only required the Government to publish guidance concerning the procedures corporates could put in place to prevent bribery. It did not require guidance on the Government’s intended approach to interpreting the Act; it is not certain how the courts will approach that element of the guidance and what weight they will give to it.
The diagram below illustrates the extent of these uncertainties: those businesses in the red zone are clearly caught by the Act; those in the green zone are not. However, despite the Government’s guidance, the position remains unclear in relation to a number of important factors, for example those which appear in the yellow zone. This uncertainty will only be resolved when the first cases come before the UK courts for determination. This is unlikely to be for at least a few years, until alleged offences are discovered by the prosecuting authorities, which occurred after the Act came into force.