Unscrewing the Inscrutable: The UK Bribery Act 2010

The United Kingdom’s Bribery Act is a complete revision of all U.K. bribery and corruption statutes and applies to both domestic and foreign bribery. In this article we review the operative provisions of the Bribery Act and then focus on a surprising new corporate crime, the failure of a commercial enterprise to prevent a bribe. This crime, which requires no mens rea and no knowledge of the offending bribe, is directed not just at U.K.-organized businesses, but also at many non-U.K. businesses involved in cross border transactions. The Act will ensnare non-U.K. companies for three reasons: the Bribery Act contains an expansive concept of what may be considered a bribe, the jurisdictional reach of the Act is unparalleled, and the offending act of bribery need not be committed by an officer or employee of the company, but rather, any “associated person” may trigger the new strict liability crime of “failing to prevent bribery.” We also consider the Act’s unrealistic treatment of facilitation payments and hospitality expenditures, which compels the conclusion that thousands of international businesses are now guilty of the Bribery Act’s new crime of failing to prevent bribery. The surprising hypocrisy of Parliament criminalizing practices that it acknowledged are in fact daily occurrences by U.K. and non-U.K. companies almost defies explanation.