Bribery Flashcards
Bribery act 2010
Came into force on the 1 July 2011
Replaced and repealed the common law; Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Acts 1906 and 1916
Applies across the UK; as well as extra-territorial jurisdiction e.g the Act applies to actions in the UK and abroad, in both the public and private sectors.
Clear focus on commercial bribery in the Act, although applies to all bribery.
Summary
S1- offences of bribing another person
S2 - offences relating to being bribed
S6 - Bribery of foreign public officials
S7 - Failure of commercial organisations to prevent bribery
Part 1
Applies to person P who offers, promises or gives a financial or other advantage to another.
Case 1 concerns cases in which the advantage is intended to bring about an improper performance by another person of a relevant function or activity, or to reward such improper performance.
Case 2 concerns cases in which P 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
Advantage can be offered, promised or given by P directly or through someone else
Part 2 - R
Offence of bribery as it applies to the recipient/potential recipient (R) of the bribe
Cases 3,4 and 5 there is a requirement that R requests, agrees to receive or accepts an advantage, whether or not R actually receives it. This requirement must then be linked with the improper performance of a relevant function or activity.
Case 6 requires improper performance by R or another person where R requests it, assents to or acquiesces in it). This performance must be in anticipation or in consequence of a request, agreement to receive or acceptance of an advantage.
Part 3
Financial or other advantage is not defined in the Act: common sense applies
Section 3 covers the “relevant function or activity s.3(2) applies to:
a) any function of a public nature
b) any activity connected with a business
c) any activity performed in the course of a person’s employment
d) any activity performed by or on behalf of a body of persons whether corporate and unincorporated
AND
Where there is an exception that the person performing the function or activity is doing so in good faith; impartially; or is in a position of trust by virtue of performing it
Section 4
Improper performance - a relevant function or activity
A) is performed improperly if it is performed in breach of a relevant exception (good faith etc) and
B) is to be treated as being performed improperly if there is a failure to perform the function or activity and that failure is itself a breach of a relevant expectation
Section 5
The standard in deciding what would be expected is what a reasonable person in the UK might expect of a person in relation to the performance of the type of function or activity concerned
Slide 12
A person who bribes a foreign public official F is guilty of an offence if P’s intention is to influence F in F’s capacity as a foreign public official
P must also intend to obtain or return a business or an advantage in the conduct of business
Offence can be committed through a third party
Section 6 only applies to the briber and not to the official to receive such a bribe
Offence of failing to prevent bribery which can only be committed by a relevant commercial organisation
Section 7 (1) a relevant commercial organisation is guilty of an offence under this section if a person associated with the organisation bribed another person intending
A - to obtain or retain business for the organisation.
B- to obtain or retain an advantage in the conduct of business for C
Relevant commercial organisation is defined as. 7(5) as
A body incorporated under the law of any part of the UK and which carries on business whether there or elsewhere
A partnership that is formed under the law of any party of the UK and which carries on business there or elsewhere or
Any other body corporate or partnership wherever incorporated or formed which carries on business in any part of the UK
Liability is strict and vicarious
However Section 7(2) it is a defence for the commercial organisation to prove that it had in place adequate procedures designed to prevent person associated with C from undertaking such conduct
So to avoid corporate liability for bribery organisations must ensure that they have robust and effective anti bribery policies/training and systems
Consequences
Section 10 - consent to prosecution
Section 11 - Penalties
Individuals - up to 12 months imprisonment
Commercial organisation - indictment only 1 unlimited fine
Serious fraud office v rolls-Royce PLC
LLOYDS REP 2017 F.C 249
The conduct
I) involved offences relating to the bribery of foreign public officials, commercial bribery and the false accounting of payments to intermediaries
2) the offences were multi-jurisdictional, numerous and spread across RR defence aerospace, civil aerospace and energy businesses
3) the offences have caused and or will cause substantial harm to the integrity confidence of markets
4) the offending was persistent and spanned from 1989 to 2013
5) the offending involved substantial funds being made available to fund bribe payments
6) the conduct displayed elements of careful planning
7) the conduct related to the award of large value contracts which taken together ultimately earned over £250 million of gross profit
8) the conduct involved senior RR employees
12-19
Section 12 - Territorial Application
Section 14 - Offences under section 1,2 and 6 by bodies corporate
Section 15: offences under section 7 by partnerships
Section 19 - commencement and transitional provision
Bona fide hospitality and promotional expenditure is accepted as long as
Seeks to improve the image of the commercial organisation
Is to better present products and services
Is to establish cordial relations…recognised as legitimate and important dimension of business and will not be criminalised.
