Prosecutors in England & Wales can prosecute anyone (including any corporate) if they commit a criminal act in this jurisdiction. More generally, the Bribery Act applies to all UK corporates in respect of their activities globally, but also, in some cases, to any other corporates with a business presence in the UK. This is through its strict liability criminal offence for such corporates where someone performing services on their behalf, anywhere in the world, commits an act of bribery to obtain or retain business or a business advantage for them. A key question for non-UK corporates then, is how much of a business presence is required to trigger the application of the Act.
Publication
23 Jan 2023 ·
United Kingdom
Is your organisation at risk?
2 min read
The position remains uncertain in some respects. Although the Government’s 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), gives some indicators of how it intended the extension of the Act to foreign corporates to work, questions still remain as to the scope of the Act in practice and the status of that guidance. There is still a lack of case-law based on contested trials that have considered this question in detail. What is clear is that the greater connection that a foreign business has to the UK, the greater the risk that it will be deemed to be caught by the Act. A stark example of its potential reach was the deferred prosecution agreement concluded in 2020 with Airbus SE (the Dutch and French domiciled parent of the Airbus group), under which Airbus accepted that it carried on part of its business in the UK through two UK subsidiaries where were under its strategic and operational control, where those businesses had been involved in bribery that took place entirely outside the UK. While not contested, the application of the extra-territorial jurisdictional test for liability under section 7 UKBA was significant; foreign incorporated businesses and groups should take note that they may be exposed to the UKBA if they have UK subsidiaries that are effectively overseen or controlled by the parent.
