The purpose of the Bill, which was published on 25 March 2009, is to reform the criminal law of bribery to provide for a new consolidated scheme of bribery offences to cover bribery both in this country and abroad.

Summary of the proposed offences

Bribing another person

This offence is concerned with the conduct of the payer of the bribe who, directly or through a third party, offers, promises or gives a financial or other advantage to another. The Bill distinguishes two cases.

Case 1: where the advantage is intended to bring about an improper performance by another person of a function or activity or to reward such improper performance. Function or activity could be of a public nature or activities connected with trade, business or a profession.

Case 2: where the payer knows or believes that the acceptance of the advantage offered, promised or given in itself constitutes the improper performance of a function or activity.

Offences relating to being bribed

This offence applies to the recipient or potential recipient of the bribe (R). There are four different situations set out in the Bill where R will be guilty if s/he requests, agrees to receive or accepts a financial or other advantage. It does not matter whether R receives or accepts the advantage directly or through a third party or whether the advantage is (or is to be) for R's benefit or another person.

Bribery of foreign public officials

A foreign public official includes anyone holding a legislative, administrative or judicial position of any kind (for example a government official) and extends to anyone exercising a public function as well as those working for public international organisations.

To be guilty of this offence, the giver of the bribe must directly or indirectly offer, promise or give a financial or other advantage not legitimately due to an official (or to another person at the official's request) intending to:

  • influence the official in their capacity as a foreign public official; and
  • obtain or retain business or a business advantage.

Failure of commercial organisations to prevent bribery

This offence is aimed at commercial organisations (for example a company or a partnership) that fail to make efforts to ensure that bribery is not committed. The offence could be committed where a person performing services for the commercial organisation bribes another person; the bribe is in connection with the commercial organisation's business and the person in the organisation who has the responsibility of preventing bribery negligently fails to prevent the bribe.

It is a defence for an organisation to show it had adequate procedures in place to prevent bribery being committed on its behalf unless it is a senior officer (such as a director, secretary or manager) who was negligent in failing to prevent the bribe.

Individual liability for corporate bribery

The Bill provides that company directors, managers, secretaries or other similar officers should be personally criminally liable if they have consented to or connived in the commission of one of the three general offences of bribery. The starting point must be that the body corporate is guilty of one of those offences before individual liability can be determined.

Penalties

In the most serious cases, any offence under the Bill committed by an individual is punishable either by imprisonment for up to 10 years and/or an unlimited fine. Any other body (including a company) will face unlimited fines if convicted on indictment.

Wragge & Co's experts provide some actions you should consider taking now to avoid falling foul of the proposed new legislation.