UK Law and Practice Contributed by: Neil Swift, Jasvinder Nakhwal, Charlotte Tregunna and Rachel Cook, Peters & Peters
porate entity is now also guilty of the offence under the identification principle. Section 7 offence This offence is not dependent on the liability of an individual “identified” with the company. It is a specific corporate offence, so all that is required to demon - strate liability is sufficient evidence that the bribery took place. 4. Defences and Exceptions 4.1 Defences The defences under the BA 2010 are limited. Defences to the Section 1, 2 and 6 offences include cases where the conduct concerned was necessary for the proper exercise of any function of an intel - ligence service or the armed forces on active service, as per Section 13 of the BA 2010. Active service for these purposes means: • in an action or operation against an enemy; • in an operation outside the British Islands (ie, the UK and Crown Dependencies) for the protection of life or property; or • the military occupation of a foreign country or ter - ritory. As set out in 2.1 Bribery , it is a defence to a “failure to prevent bribery” (Section 7) offence if the entity can show it had adequate procedures in place to prevent its agents from committing bribery. 4.2 Exceptions The defence under Section 13 of the BA 2010 described in 4.1 Defences only applies to “relevant bribery acts”. “Relevant bribery acts” are defined to exclude Section 6 offences. The defence under Section 13, therefore, cannot be used for the “bribery of foreign public offi - cials” offence. 4.3 De Minimis Exceptions There is no de minimis exception for offences under the BA 2010. This means that even low-value gifts,
hospitality or other advantages can trigger liability under the BA 2010 if they are linked to improper per - formance of a relevant function or activity. As men - tioned in 2.1 Bribery , there is prosecutorial discretion, and the Code for Crown Prosecutors also includes the public interest test, which might err on the side of non-prosecution in cases relating to small amounts. 4.4 Exempt Sectors/Industries The BA 2010 applies broadly to both the public and private sectors, with no exemptions for specific sec - tors or industries. 4.5 Safe Harbour or Amnesty Programme The BA 2010 does not explicitly provide a safe har - bour or amnesty programme for organisations based on self-reporting, adequate compliance procedures or remediation efforts. There are, however, mecha - nisms that may mitigate the consequences of bribery offences for organisations that demonstrate proactive compliance and co-operation. As set out in 2.1 Bribery , a commercial organisation can raise a statutory defence to the corporate offence of “failure to prevent bribery” if it can prove that it had “adequate procedures” in place to prevent bribery. In The Bribery Act 2010: Guidance, one procedure the Ministry of Justice recommends implementing is whistle-blowing measures (discussed in more detail in 6.3 Self-Disclosure Procedures to 6.5 Incentives Provided to Whistle-Blowers ). Additionally, the SFO has policies that encourage self-reporting and co-operation. Organisations that self-refer incidents of bribery and demonstrate a willingness to cooperate with investigations, includ - ing making full disclosures, may influence the SFO’s decision on whether to pursue criminal proceedings. 5. Penalties for Violations 5.1 Penalties on Conviction There are many potential penalties upon conviction for the full range of anti-corruption offences. Under the BA 2010, the following penalties apply:
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