It is recorded in the literature which has been produced by the UK Government to accompany the draft Bribery Bill that the UK Government seeks to enact a law that is simple enough to be readily understood and which provides modern criminal offences to address bribery at home or abroad. It is also noted in the supporting literature that, given the criticism of the Organisation for Economic Co-operation & Development ("OECD") Bribery Working Group of the existing UK laws dealing with corruption that "Failure to modernise the law could tarnish the UK reputation and this could lead to potential economic losses to UK businesses".
General Offences of Bribery
The proposed legislation includes two "General Offences" of bribery:
- an offence of bribing another person and
- an offence of receiving a bribe.
The offences are broadly defined. The offence of making a bribe covers the offering of any advantage in circumstances which are improper. An offence will be committed when, for example, an improper payment is offered to a person who owes some form of loyalty or duty to another and the acceptance of that advantage would be either improper in itself or would erode the loyalty or duty owed. An offence would also be committed by the person receiving an advantage in such circumstances. An offence can be committed by either a natural or legal person who has some close connection with the UK e.g. a British citizen, a British overseas territories citizen (by way of example both Bermuda and the Cayman Islands are British overseas territories), a person who is ordinarily resident in the UK or by a UK company.
It should be noted that, given the present difficulties in securing a conviction against a corporate body for a criminal offence it is highly unlikely that any company will ever be convicted of a General Offence of bribery unless that company is an owner/managed business. The difficulty in obtaining a criminal conviction of a legal person is in part recognised by the inclusion within the Bill of the corporate offence of "Failure of commercial organisations to prevent bribery".
The Bill provides the UK authorities with a very wide geographical jurisdiction. Provided the person who carries out the relevant act of giving or receiving a bribe has a close connection with the UK, an offence is committed even if the relevant act is done outside of the UK provided that the act would be an offence if done in England and Wales or Northern Ireland.
Bribery of Foreign Public Officials
The Bill contains a specific offence of bribery of foreign public officials. There is no corresponding offence making it a criminal act, under UK law, for a foreign public official to receive a bribe.
To commit the offence those making the payment must "also intend to obtain or retain – (a) business, or (b) an advantage in the conduct of business". It should be noted that the two General Offences of bribery are such that the UK authorities have jurisdiction over bribery even where the relevant act takes place outside of the UK. It is not immediately obvious how the specific offence of Bribery of Foreign Public Officials extends the reach of the UK authorities. It is possible it might catch some situations which are not covered by the General Offences of bribery such as the acts of the payment of bribes to officials in public international organisations.
To secure a conviction under the General Offences of bribery it is necessary to identify one of the "function" elements which are specified in the Bill. In relation to foreign public officials it should be expected that that function element can be satisfied because most foreign public officials will undertake "function of a public nature" but it might not be as clear that those foreign public officials who work for a "public international organisation" discharge one of the specified functions.
It may well be that the inclusion of the specific offence of Bribery of Foreign Public Officials is included primarily to ensure that there is no further complaint from the Working Group that the UK legislation is not compliant with Convention obligations, rather than to ensure that the proposed legislation provides a criminal law which achieves the UK government's stated objective of the creation of a modern criminal law to address bribery at home and abroad.
Failure of Commercial Organisations to Prevent Bribery
This proposed offence can only be committed by a business (a partnership, company etc.) as opposed to a natural person. In essence, the proposed crime would be committed where a person or persons whose functions at the time of the bribe included preventing persons from committing a General Offence of bribery was or were negligent in failing to prevent bribery. The Bill contains a provision that if there is no person in the company whose function at the time that the bribe was paid included the prevention of bribery (such as a compliance officer) then the offence is committed by the business if any senior officer of the business (defined in the Bill as a director, manager, company secretary or similar) is negligent in failing to stop the bribery. The Bill includes a defence which can be relied on if the business can prove that it had in place "adequate procedures designed to prevent persons performing services for or on its behalf from committing" a General Offence of bribery. The defence is only available if the negligence was not committed wholly or partly by a senior officer.
Consent to Prosecution
At present, the consent of the Attorney General is required for any prosecution for an offence of bribery, a situation that has been criticised because the Attorney General is a political appointment. The Bill provides that the consent to prosecute will be provided by one of a number of specified officials, none of whom is a political appointment. These include the Director of Public Prosecutions and the Director of the Serious Fraud Office.
The proposed maximum period of imprisonment on conviction for committing a General Offence of bribery is 10 years in prison. The present maximum sentence of conviction for an offence of corruption is 7 years.
The level of fine remains unaltered in that the maximum fine remains unlimited.
There are specific provisions that exempt those in the intelligence service from the provisions in the proposed legislation provided that their actions are authorised by the Secretary of State.
Proceedings in Parliament
It is proposed that the law be changed to allow proceedings in Parliament to be admissible in evidence. This change will allow Members of Parliament to be prosecuted for a bribery offence where this relates to their Parliamentary activities.
Common Law Offences to be Abolished
The common law offences of bribery and embracery are to be abolished. Embracery is the little known and (until the publication of the most recent Law Commission Report) virtually never referred to common law offence of bribery of jurors.
Serious Fraud Office (SFO)
The SFO is a creation of statute. It was created specifically to investigate and prosecute cases involving serious and complex fraud. Since 2004, the SFO has been required to investigate some allegations of bribery overseas but it has never been provided with any specific statutory authority to undertake those investigations. The Bill contains a provision which extends the SFO's statutory remit to the investigation of any offence contained in the Bill. This will presumably allow the SFO to use its special powers to compel production of documents and other information not only as it now does in relation to the investigation of serious and complex fraud but also, once the proposed legislation is enacted, in relation to the investigation of bribery offences.
Presentation to Parliament
No date has been provided as to when the Bill will be presented to Parliament. It was not included within the Queen's Speech and therefore it is not expected that the draft Bill will be presented to Parliament in 2009.