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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
The key offences set out in the Bribery Act 2010 are:
- Section 1 – offering a bribe (active bribery);
- Section 2 – receiving a bribe (passive bribery);
- Section 6 – bribery of a foreign public official; and
- Section 7 – failure of a commercial organisation to prevent bribery.
The failure to prevent bribery has proved to be the most controversial, as it is a strict liability offence which places a burden of proof on companies to demonstrate that they have put adequate procedures in place to prevent bribery. The company will be guilty regardless of whether they had knowledge of the corrupt activity. In simple terms, this offence means that where an employee is involved in bribery, the company will be held criminally responsible unless it can show that it took reasonable steps to ensure adequate procedures were in place to prevent bribery from occurring.
For offences committed before July 1 2011, the key offences are:
- the common law offences of public sector bribery of a person in public office and misconduct in public office;
- active or passive bribery of a member, officer or servant of a public body (Section 1 of the Public Bodies Corrupt Practices Act 1889); and
- corrupt transactions (bribery) with agents in public or private sector (Section 1(1) of the Prevention of Corruption Act 1906).
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
In the United States, the Foreign Corrupt Practices Act 1977 clearly provides a defence for “reasonable and bona fide” expenses. In the United Kingdom, the Bribery Act 2010 failed to set out the position on corporate hospitality, gifts and expenses. As a result, companies have been left uncertain as to the extent to which these matters could cause them to fall foul of the act.
The provision of hospitality or other expenditures to another could fall under the offences set out in Sections 1, 6 or 7 of the 2010 act. For instance, under Section 1 (offering a bribe), a gift may be seen as a bribe if it is deemed to be an “advantage” offered or received in return for “improper performance”. Case law has not clarified the definition of an ‘advantage’ or ‘improper performance’.
Under Section 6 (bribery of a foreign official), the prosecution would need to show that the gift or hospitality was intended to influence the foreign public official in order to obtain/retain business or an advantage in the conduct of business. The joint Serious Fraud Office (SFO) and Crown Prosecution Service (CPS) guidance recognises that hospitality which is “reasonable, proportionate and made in good faith is an established and important part of doing business”. In October 2012 the SFO indicated that its focus was on bribes disguised as legitimate business expenditure rather than “bona fide hospitality”. The SFO noted that in certain cases involving business expenditure it may use its powers of civil recovery under the Proceeds of Crime Act 2002 as an alternative or in addition to prosecution where it would be in the public interest to do so.
Companies should ensure that their hospitality and gifts policy reflects this approach and has oversight to prevent gifts or hospitality which could be regarded as unreasonably lavish. In March 2011 then Justice Secretary Ken Clarke explained: “Rest assured – no one wants to stop firms getting to know their clients by taking them to events like Wimbledon or the Grand Prix”. There is no detailed guidance as to what gifts or hospitality will be considered a bribe – this is a question of fact and degree, and the full circumstances of the case must be considered.
What are the rules relating to facilitation payments?
Consistent with its strict approach (and unlike its US counterpart), facilitation payments are illegal under the 2010 act. This reflects the position before the 2010 act. The joint guidance from the director of public prosecution and the SFO on facilitation payments describes facilitation payments as “unofficial payments made to public officials in order to secure or expedite the performance of a routine or necessary action”. In a 2013 interview Director of the SFO David Green said that the SFO was not interested in a single payment of £20 and bottle of whisky made to a pilot to take a ship to a specific destination. However, a course of conduct over a number of years will not be viewed as a small, insignificant bribe, but rather a regular payment over time to ensure business.
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