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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
The key bribery offences contained in the Bribery Act 2010 are:
- bribing another person (Section 1);
- receiving a bribe (Section 2);
- bribing a foreign public official (FPO) (Section 6); and
- failure of a commercial organisation to prevent bribery (Section 7).
Bribing another person and receiving a bribe
An offence has been committed if the bribe payer:
- intends the offer, promise or giving of an advantage to bring about or reward another person’s improper performance of a relevant function or activity; or
- knows or believes that the acceptance of the advantage offered, promised or given, in itself, constitutes the improper performance of a relevant function or activity.
The offer, promise or giving of an advantage can be direct or indirect.
Section 2 of the Bribery Act creates an equivalent offence in relation to being bribed.
‘Improper performance’ is the performance of an activity in breach of an expectation of good faith or impartiality, or in breach of a position of trust. The test for whether an activity has been performed improperly is what a reasonable person in the United Kingdom would expect in relation to the activity. If the activity takes place overseas, local customs are disregarded unless permitted by the country’s written law.
The offences under Sections 1 and 2 of the Bribery Act apply to both public and private-sector bribery relating to any function:
- of a public nature;
- connected with a business;
- performed during a person’s employment; or
- performed on behalf of a company or another body of persons.
Bribing a foreign public official
It is an offence to directly or indirectly offer, promise or give a financial or other advantage to an FPO or another person at the FPO’s request or with his or her assent or acquiescence in circumstances where the person intends to influence the official in his or her capacity.
The briber must intend:
- that the advantage given or offered would influence the FPO in the performance of his or her FPO duties; and
- to secure business or obtain a business advantage.
There is no requirement for corrupt intent or improper performance on behalf of the FPO. No offence is committed if the advantage to the FPO is permitted or required by the written law applicable to the FPO.
The definition of ‘FPO’ is extremely broad and includes:
- all elected and appointed officials holding a legislative, administrative or judicial position of any kind in a country or territory outside the United Kingdom; and
- any person performing public functions in any branch of the national, local or municipal government, or exercising a public function for any public agency or enterprise of such a country or territory, and working for international organisations.
Failure of a commercial organisation to prevent bribery
A commercial organisation is guilty of an offence if a person associated with it bribes another person with the intention of obtaining or retaining business or a business advantage for the organisation. An ‘associated person’ is someone who performs services for, or on behalf of, the commercial organisation and includes an employee, agent or subsidiary (Sections 8(1) and 8(3) of the Bribery Act). This is a strict liability offence and an organisation will be guilty unless it can show that it had in place adequate procedures to prevent bribery. ‘Adequate procedures’ are not defined in the Bribery Act, but they are addressed in the Ministry of Justice (MoJ) Guidance.
Section 7 of the Bribery Act is potentially far-reaching. It covers bribery both in the United Kingdom and abroad, and applies to both UK and overseas businesses.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
There is no specific exception regarding the giving of gifts, travel expenses, meals or entertainment.
Under the MoJ Guidance, the Bribery Act does not prohibit hospitality and promotional expenditure that is:
- reasonable; and
- undertaken in good faith.
However, there may be instances where such expenditure could fall under Sections 1, 6 or 7 of the act. Whether it does so is a question of fact in each case.
Joint guidance issued by the director of the Serious Fraud Office and the director of public prosecutions indicates that hospitality or promotional expenditure which is “reasonable, proportionate and made in good faith is an established part of doing business” and the Bribery Act does not seek to penalise such behaviour. The more lavish the hospitality or expenditure (or if it is unconnected to a legitimate business activity), the greater the inference that it is intended to encourage or reward improper performance or influence an official (see the MoJ Guidance for useful illustrations).
What are the rules relating to facilitation payments?
The Bribery Act makes no exception for facilitation payments.
In order for prosecution to be brought for a facilitation payment, there must be a realistic prospect of a conviction and the prosecution must be in the public interest. The Joint Prosecution Guidance states that cases of large or repeated facilitation payments have a higher likelihood of prosecution. A small one-off payment may not satisfy the public interest test. Similarly, if the payer was in a vulnerable position arising from the circumstances in which the payment was demanded, this may tend against prosecution being brought.
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