A relevant commercial organization can only be strictly liable for failing to prevent bribery if an associated person bribes another person.

A person is associated with a commercial organization if that person performs services for or on behalf of the commercial organization.  The capacity in which the person performs services for or on behalf of the commercial organization does not matter; the person may be the commercial organization’s employee, agent or subsidiary.  Unless the contrary is shown, a person is presumed to be an associated person of a commercial organization if the person is its employee.1  Whether a person is an associated person is to be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between the person and the commercial organization.2

The Ministry of Justice Guidance states that “[t]he concept of a person who ‘performs services for or on behalf of’ the organisation is intended to give section 7 broad scope so as to embrace the whole range of persons connected to an organization who might be capable of committing bribery on the organization’s behalf.”3

The broad scope can include contractors and suppliers, if they are performing services for a commercial organization rather than simply acting as the seller of goods.

1 Bribery Act 2010, c. 23, § 8 (UK).

2 Ministry of Justice, The Bribery Act 2010 Guidance, at 16 (2011) (Bribery Act 2010 Guidance).

3 Bribery Act 2010 Guidance at 16.

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