No one would argue that before 2010 the UK’s anti-corruption legislation was not archaic and inadequate. Piecemeal attempts to make the old law fit for purpose through the introduction of extra-territorial offences met with limited success, and even more limited enthusiasm from international organisations.

While the Bribery Act 2010 may bring the UK into line with its convention obligations, some measures within the act suggest an element of ‘gold plating’ beyond international requirements. As a result, there is a danger that increased compliance costs and uncertainty as to what is permissible for business could reduce competitiveness.

Of most concern is the lack of a need to establish an intention to corrupt on the part of both the giver and receiver of an advantage in new criminal offences under section 1 and 2 of the act. Devoid of such a mental element, any giver or receiver of an advantage could potentially commit an offence and be imprisoned for up to 10 years. The sole issue for the jury in such cases will be whether the giver of the advantage intends the receiver to act improperly, or whether the receiver of the advantage has agreed to perform a function improperly.

Under section 6 of the act, which is even wider, a person who bribes a foreign official is guilty of an offence if his intention is to influence a person in his capacity as a foreign official, and if his intention is to obtain or retain business through the giving or promise of a financial or other advantage. Commercial organisations now also face criminal sanctions under section 7 of the act, if they have failed to implement adequate procedures to prevent a person committing a bribery offence. What are adequate procedures? Guidance from government is awaited, but one view is that the procedures of any organisation could be deemed inadequate if a person has committed bribery.

Therefore, the act marks a major encroachment by government on the way commercial organisations are required to operate. Hitherto, compliance policies have tended to be solely for the regulated sector. Not any longer. Regardless of size, commercial organisations which fail to have formal written anti-bribery systems and training programmes run a considerable risk.

The government argues that prosecutors will exercise their common sense. Thus, the act affords them complete discretion as to whether individuals or corporates should face criminal sanction on any given set of facts. However, the all-encompassing approach of the act will undoubtedly cause problems for commercial organisations, especially those operating overseas. While the publication of guidance before commencement of the act relating to hospitality and what amounts to adequate procedures may alleviate some of the more obvious uncertainty, protocols, carve-outs and guidance are not an appropriate way to legislate criminal offences.

Moreover, though a disconnect between the scope of the offence-creating sections and actual prosecution risk is all very well, in a modern economy criminal offences cannot be analysed in a vacuum. A potential criminal exposure under the act will have repercussions under the Proceeds of Crime Act 2002 and for the organisation’s own anti-money laundering systems.

By contrast, the Foreign Corrupt Practices Act (FCPA) in the US, which is over 30 years old, requires persons to act corruptly and wilfully before criminal liability results. Conduct that is not wilful attracts civil penalties. The FCPA has worked well and is pragmatic (for example, by recognising the necessity of facilitation payments in certain circumstances). And there is legislative certainty, together with a clear demarcation as a result of the different mental elements between civil and criminal wrongdoing.

The UK act goes much further. Rather than legislative certainty, the act places discretion in the hands of law enforcement. Whether the civil service is best equipped to exercise such discretion is another issue.

Jason Mansell is a barrister at 7 Bedford Row Chambers, London, specialising in white-collar crime and Financial Services Authority litigation