On 25 March the Government published its Bribery Bill. In large part this follows the Law Commission's draft Bribery Bill which was published on 20 November last year (we published a briefing on this on 26 November). However, there are a number of key changes which are set out below.
- The Government has agreed with the Law Commission's suggestion of introducing a negligence offence for corporates and partnerships of failing to prevent bribery by those performing services on behalf of the organisation;
- It does not matter where the act of negligence takes place, therefore acts or omissions overseas would still be subject to the offence;
- The offence introduces an adequate systems defence, but disapplies this defence where the act of negligence is due, either in full or in part, to a senior officer of the organisation or a person purporting to act in that capacity;
- A key change with this offence is that where a person has committed an act of bribery on behalf of an organisation and there was no one within the organisation who had specific responsibility for preventing that person from committing an offence, then the responsibility will be deemed to be that of a senior officer. This has the effect of disapplying the adequate systems defence. Thus, if the organisation fails to appoint someone for these purposes, it will be irrelevant whether the organisation had adequate systems and controls in place;
- An organisation will need to ensure not only that it has systems and controls in place to reduce the risk that those acting on its behalf engage in acts of bribery, but also that steps are taken to ensure that such systems are embedded throughout the organisation. Given the change proposed by the Government it will also be important that line management have responsibility to ensure that those they manage do not engage in acts of bribery.
The bill repeals the previous offences and instead introduces four new offences:-
Offence of bribing another person
There are four parts to this offence:- see chart
It is irrelevant whether the advantage is offered, promised or given directly or through a third party.
This introduces both a subjective and an objective test for determining what is improper (ie, what is corrupt). For example, to commit the first variant of the offence, a person has to intend the advantage to induce a person to perform a function or activity improperly (a 'subjective' test - ie, one relating to the defendant's state of mind). However, in order to determine what is expected of a person carrying out those functions or activities a 'reasonable person test' is adopted (an 'objective' test, based on what a reasonable person would expect). What is not clear is whether the defendant would have to intend to induce someone to perform a function improperly, or whether it would be sufficient to show that the defendant intended the person to exercise their function in a particular way. In other words, is it necessary to show that the defendant knew that the exercise of the function in that way was improper? Given that the offences relating to being bribed expressly state that it does not have to be shown that the bribee knew or believed that the performance of the function or activity was improper, it is likely that a prosecutor would have to show in the case of the briber, that the briber intended what he was doing would be (or lead to) an improper performance. If the courts adopt the former approach, it is not clear where that would leave the Government's introduction of a reasonable person test.
Offences relating to being bribed
There are 4 different situations where a person will be guilty of committing an offence of either requesting, receiving or acting in anticipation of a request, receipt or agreement to receive a bribe.
These offences apply to the functions and activities set out above.
In three of the situations set out in the draft Bill, it is irrelevant whether the bribee knows or believes that the performance of the function or activity is improper. This is interesting as it is not clear what intention or knowledge would need to be shown on the part of a defendant in these cases. This creates a situation where there is an uneven playing field between offences for the briber and the bribee.
Bribery of foreign public officials
There are three parts to this offence. The briber must:- see table
Importantly, it is not necessary for the briber to know or intend that the public official act "improperly" - it is sufficient that the briber intends to influence the official. Inevitably, much interaction with foreign government officials may be aimed at obtaining or retaining business in some sense, and influencing such officials. Arguably, therefore, this shifts too much weight onto the importance of compliance with local law - which may be costly to determine.
Failure of commercial organisations to prevent bribery
There are three parts to this offence:- see table
Interestingly, the Explanatory Notes suggest that "the corporate offence is not regulatory in nature and there will be no monitoring of compliance. The intention here is that the offence will have a beneficial effect for corporate governance by encouraging those companies which have not already done so to adopt adequate systems to prevent bribery. But this is not a one size fits all approach. It is not intended to prescribe the anti-bribery measures to be taken".
In practice, companies may feel that it is unhelpful for the government to simultaneously back away from giving any indication of suitable controls in this area and introduce an offence giving rise to criminal sanction for the failure to have such controls. This is clearly an area where additional guidance would be sensible - albeit, as the Government suggests - not on a "one size fits all" approach.
The Government has adopted the Law Commission's proposal of an adequate systems defence, and also agreed that this defence should not apply where the act of negligence or omission arose as a result of the actions or inaction of a senior officer or a person purporting to act in such a capacity. What is new is that if the organisation does not have someone who is responsible for preventing the briber from committing an offence this will be deemed to be a senior officer, in which case it will not matter whether or not the organisation has adequate systems and controls in place if the senior officer has been negligent, as in these circumstances the defence will not apply. This effectively closes a 'loophole' in the previous proposals whereby a company might have escaped liability by failing to nominate a responsible person for these purposes. Line management will therefore need to be charged with ensuring that those they manage do not engage in corrupt activities.
With this offence there are a number of key changes from the offence proposed by the Law Commission and these are set out in detail below.
Not only does the offence of bribing a foreign public official apply to acts committed overseas, all the offences described above apply to acts committed overseas. The offences of bribing another person, being bribed and bribing a foreign public official apply to British citizens, to bodies incorporated under the law of any part of the United Kingdom and also to individuals ordinarily resident in any part of the United Kingdom (this is an extension to the previous law).
It is now more important than ever that organisations take steps to ensure they have in place systems and controls to reduce the risk that those acting on their behalf engage in acts of bribery and that steps are taken to ensure that such systems are embedded throughout the organisation. Given the change proposed by the Government it will also be important that line management have responsibility to ensure that those they manage do not engage in acts of bribery, also members of senior management could find themselves having to defend their negligence which has resulted in criminal charges.