Bribery and Corruption Offences: A Practical Guide

Introduction: what a bribery allegation means for you

Bribery and corruption allegations are treated seriously because they involve allegations that someone has tried to improperly influence a decision or obtain an unfair advantage.

These cases can arise in many different settings, including business, employment, public services, procurement, international trade and professional relationships. It is likely that incidents that involve public finances and contracts will be treated more seriously at every stage from investigation through to sentence.

A bribery allegation does not necessarily involve a direct cash payment. The alleged advantage could include gifts, hospitality, preferential treatment, opportunities, contracts or other benefits. Many investigations involve difficult questions about intention, business practices and whether something was a legitimate commercial arrangement or an improper inducement.

Being investigated does not mean that you are guilty. The prosecution must prove the elements of the offence and the required state of mind.

What does the law say?

The Bribery Act 2010 created the modern framework for bribery offences in England and Wales.

The legislation makes it an offence to offer, promise or give someone an advantage with the intention of improperly influencing their actions. It also covers situations where someone requests, agrees to receive or accepts an advantage in return for acting improperly.

The law also deals with bribery of foreign public officials and places certain responsibilities on companies to prevent bribery by people connected with their organisation. The purpose of the legislation is not to prevent ordinary business relationships. It is aimed at stopping people gaining unfair advantages through improper influence.

Bribery – an overview

Bribery is the promising or giving of something of value to another person intending to induce that other person to improperly perform a function or activity. Improper performance also includes not carrying out the function or activity at all. The person receiving the bribe also commits and offence.

The ‘function or activity’ is defined by the Bribery Act as: any function of a public nature, any activity connected with a business, one performed in the course of a person’s employment, or an activity performed by or on behalf of a body of persons. The person carrying out the function or activity must be expected to do so in good faith and impartially.

A simple example would be a director of Acme Limited paying a local authority decision maker money to secure a contract with the local authority. Bribery also occurs if the contract is awarded first and Acme Limited pays money as a reward afterwards.

The valuable thing given could be a payment of money or it could be something else of value. Returning to our Acme Limited example, it would still be bribery if the director gave the local authority employer tickets to the FA Cup final as payment for the contract being awarded to Acme.

In these two examples, the local authority official also commits an offence by accepting the bribe.

The important issue is not simply whether something of value changed hands. The prosecution must show that the advantage was intended to influence conduct improperly. Going back to Acme Limited and the FA Cup final tickets. If the trip to the match is part of a hospitality package intended to help build a business relationship with a number of people from different organisations rather than as direct payment for a contract then it will not be bribery.

The context is therefore extremely important.

The offences

Giving or offering a bribe

A person commits an offence by offering, promising or giving an advantage to another person.

By way of a few examples, allegations might include things like: someone attempting to secure a business contract by paying off the decision maker; or influencing a planning decision with a payment to a planning officer; or obtain favourable treatment from a judge; or offering a cash payment to council enforcement officers to avoid an obligation to clear up land; or gain an unfair business advantage by paying a bribe to access confidential information. The list is endless.

The key to the case – and thus the defence – is frequently whether the valuable thing was given with an intention to influence the decision maker or whether it was made in the normal course of business.

Receiving or accepting a bribe

The law also applies to the person who agrees to receive or requests some form of payment for the improper performance of a function. The payment can be in kind and need not involve actual money changing hands. It is important to note that it is the agreement or request that is criminalised. An offence is still committed even if the bribe never materialises.

In our list of examples above, all the people receiving the bribes, such as the planning officer who allows his decision to be influenced by a payment and the judge who takes payment for making a favourable judgment would be as guilty as the person making the payment.

Receiving something of value does not automatically mean a crime has been committed. The recipient must intend to perform their function improperly

Bribery involving foreign officials

The Bribery Act contains specific offences relating to foreign public officials. These cases commonly arise from international business dealings where payments or benefits are alleged to have been used to influence official decisions.

The first thing for the prosecution to establish is whether the recipient is an official at all. That may not be obvious where local law and practice deviate significantly from the law and practice in the UK.

These cases can become extremely complicated due to something called the ‘expectation test’. That requires the court to judge what ‘a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.’ The court should disregard local customs or practice unless it is permitted or required by the written law applicable to the country where the bribe is alleged to have occurred. This means that there can be much debate in the English courts over what the law of a foreign country – that may not have laws written in English at all – actually says.

Therefore, common issues may include whether the person being bribed is a foreign official for the purposes of the Bribery Act, whether a payment was allowed by local law and whether it is genuinely part of a legitimate business arrangement. In some jurisdictions, we would also raise the issue whether the recipient is actually expected to perform their function in good faith and impartially at all!

Corporate responsibility and failure to prevent bribery

Businesses can also face prosecution if someone associated with the organisation commits bribery and the company did not have adequate procedures in place to prevent it.

This means a company can potentially face consequences even where senior management were not personally involved in the conduct.

Investigations in these cases often look closely at internal systems, compliance procedures, staff training and whether the organisation took reasonable steps to prevent wrongdoing.

What must the prosecution prove?

The exact requirements depend on the offence, but bribery cases usually centre on a few important questions.

The prosecution must identify the alleged advantage and explain why it says that advantage was improper.

It must also prove the necessary intention. A person may have given a gift, provided hospitality or entered into a commercial arrangement without any intention of improperly influencing anyone.

Many cases therefore turn on evidence about conversations, emails, business decisions and the surrounding circumstances.

A person may argue that they acted openly, followed normal business practices or genuinely believed their actions were lawful.

Common defence strategies

A common defence in bribery cases is that the conduct was legitimate business activity rather than an attempt to improperly influence someone.

This might involve showing that hospitality or payments were proportionate; transparent; properly recorded; and consistent with normal industry practice.

Another possible defence is that the defendant lacked the necessary knowledge or intention. For example, they may argue that they were unaware of payments made by others or did not understand the significance of a transaction.

In business investigations, internal procedures can also become very important. Evidence of compliance systems, approval processes and reporting procedures may help explain why conduct took place.

The prosecution evidence itself may also need careful examination. Bribery cases often involve interpreting documents and communications that can have more than one meaning.

Evidence that may help your case

The evidence in bribery investigations is often extensive.

Important material may include emails, messages, contracts, financial records, company policies, approval documents and witness accounts.

Evidence showing transparency and proper authorisation can be particularly important.

It is also important to preserve documents and communications. Deleting or altering records can create additional problems.

Common mistakes defendants make

One common mistake is assuming that because something is common in business it cannot be questioned. Practices that are normal in one context may appear very different when examined by investigators.

Another mistake is attempting to explain complex commercial arrangements without preparation. Giving a poor explanation to investigators will come back to haunt defendants at trial where the prosecution will paint errors and mistakes as lies.

People sometimes also underestimate the importance of internal documents but compliance records and approval processes can become central evidence.

What sentences are available for bribery?

The sentence depends on the seriousness of the offence and the role played by the defendant. The court will consider factors such as the value of any advantage, whether the conduct was planned, whether there was abuse of a position of trust, and the impact of the offending.

The sentencing guidelines indicate sentences of up to 8-years imprisonment in the most serious cases, although the maximum sentence is 10-years imprisonment, right down to a fine in the least serious cases.

Serious bribery offences, particularly those involving significant financial benefits or deliberate attempts to influence important decisions, can result in lengthy prison sentences.

Companies may also face substantial financial penalties and reputational damage.

What happens next?

Bribery investigations can take much longer than many other criminal investigations because authorities may need to examine large amounts of financial and digital material. As a consequence, investigators at organisations like HMRC and the Serious Fraud Office can keep a suspect on bail much longer than the police can in less complex investigations.

You should expect to be questioned under caution by one or more investigators. In complex cases, they are likely to conduct multiple interviews. The first will often be at a relatively early stage to give you a chance to explain the situation and confess early if you are so inclined. Later interviews will take place once the investigators have a fuller picture of the allegation they are investigating. By this stage, you should expect the investigators to have a comprehensive interview plan ready. That plan is likely to include a scheme of staged disclosure that allows the investigator to simultaneously check the honesty of any account given and trip up a dishonest suspect. It is vitally important that you are advised in these interviews by an experienced solicitor who can help you put your position as clearly as possible without falling into any traps.

If charged, the case will proceed through the criminal courts. The first hearing will take place in the local magistrates’ court. If the offence is relatively straightforward and the sentence likely to be one that the magistrates could impose then it could be heard in the magistrates’ court at a trial hearing. If the allegation is serious and/or complex it will be sent to the Crown Court for a trial to take place there before a judge and jury.

How Chetwode can help

Bribery allegations require careful analysis of both the law and the evidence.

At Chetwode, we can assist by advising before interview, reviewing documents and financial records, identifying weaknesses in the prosecution case and preparing representations where appropriate.

We can also advise on potential defences and represent you throughout court proceedings.

These cases are often decided by the detail. Understanding the background to transactions and decisions is essential.

FAQs

Is every gift or hospitality arrangement bribery?

No. The question is whether the advantage was intended to improperly influence someone. Legitimate hospitality is not automatically unlawful.

Can I be investigated if someone else made the payment?

Yes. Investigations may examine whether you knew about, approved or were involved in the arrangement. Bribes can be paid and received via a third party.

Can a company be prosecuted for bribery?

Yes. Companies can face liability where they fail to prevent bribery by people connected with their organisation.

Should I attend a police interview?

We don’t know… yet!

Every case is different and the decisions made in your case will turn on the facts of your case not on anything else. Once we have spoken to you, obtained disclosure from the investigators, and considered the situation properly we will be able to provide advice on what to say and do during the interview that is tailored to you and nobody else.

Next steps

If you are being investigated for bribery or corruption, early advice is important.

A careful review of the allegation, the evidence and the surrounding circumstances can help protect your position and ensure the strongest possible response is prepared.