Transcript How to Win in Tribunals

Bribery
Jon Taylor
24 June 2010
What is bribery?
Transparency International (a non-governmental anti-corruption organisation)
defines bribery as "the offering, promising, giving, accepting or soliciting of
an advantage as an inducement for an action which is illegal or a breach of
trust"
(Business Principles for Countering Bribery, 2009)
Reform
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Bribery Act 2010 received Royal Assent on 8 April 2010
In force later in the year
Explanatory notes published 27 April 2010
Bribery Act 2010 – what does it do?
Makes it an offence to:
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Offer a bribe
Accept a bribe
To fail to take steps to prevent bribery taking place
Bribery Act 2010
Offence of bribing another person (section 1)
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A person (P) is guilty of an offence where they offer, promise or give a
financial or other advantage to another person in two cases:
Case 1, where P intends the advantage to bring about an improper
performance of a relevant function or an activity by another person or to
reward such improper performance (section 1(2))
Case 2, where 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 (section 1(3))
"Financial or other advantage" is not defined
Bribery Act 2010
Offence of bribing another person (section 1)
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In case 2 it does not matter whether the person to whom the advantage is
offered, promised or given is the same person as the person who is to
perform, or has performed, the function or activity concerned (section
1(4))
In either case, the advantage can be offered, promised or given by P
himself or through someone else (section 1(5))
“Relevant function or activity" (section 3)
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All functions of a public nature
All activities connected with a business (which includes a trade or
profession (section 3(7)))
Any activity performed in the course of a person's employment
Any activity performed by or on behalf of a body of persons (whether
corporate or unincorporated)
A function or activity is a relevant activity even it has no connection with the
UK or is performed in a country or territory outside the UK (section 3(6))
"Relevant function or activity" (section 3)
The relevant function or activity must also meet one or more of the following
conditions:
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There must be an expectation that the functions are carried out in good
faith (condition A)
Or impartially (condition B), or
The person performing them must be in a position of trust (condition C)
(sections 3(3), 3(4) and 3(5))
Offences relating to being bribed
The recipient or potential recipient of the bribe (R) is guilty of an offence in 4
sets of circumstances (cases 3 to 6)
Offences relating to being bribed – Case 3
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R requests, agrees to receive or accepts a financial or other advantage
R intends that a relevant function or activity is performed improperly
It does not matter if the improper performance is by R or by another person
Case 3 is subject to section 2(6)
Offences relating to being bribed – Case 4
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R requests, agrees to receive or accepts a financial or other advantage
The request, agreement or acceptance itself is the improper performance by
R of a relevant function or activity
It does not matter whether R knows or believes that the performance of the
function or activity is improper (section 2(7))
Case 4 is subject to section 2(6)
Offences relating to being bribed – Case 5
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R "requests, agrees to receive or accepts" a financial or other advantage as
a reward for the improper performance of a relevant function or activity
It does not matter if the improper performance is by R or by another person
It does not matter whether R knows or believes that the performance of the
function or activity is improper (section 2(7))
Case 5 is subject to section 2(6)
Offences relating to being bribed – Case 6
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A relevant function or activity is "improperly performed" by R (or another
person, where R requests, assents to or acquiesces in it) in anticipation of or
in consequence of R requesting, agreeing to receive or accepting a financial
or other advantage
It does not matter whether R knows or believes that the performance of the
function is improper (section 2(7))
Where the function or activity is performed by another person, it is
immaterial whether that person knew or believed that the performance of
the function or activity is improper (section 2(8))
Case 6 is subject to section 2(6)
Offences relating to being bribed – section 2(6)
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It does not matter whether it is R, or someone else through whom R acts,
who requests, agrees to receive or accepts the advantage
In addition, the advantage can be for the benefit of R or another person
Improper performance to which bribe relates (section 4)
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Performance or non-performance which breaches a relevant expectation
(section 4 (1))
"Relevant expectation" means the expectation mentioned in either condition
A or B above
In relation to condition C, it means any expectation of the manner in which,
or the reasons for which, the function or activity will be performed which
arises from the position of trust mentioned in that condition (section 4 (2))
The “expectation test” (section 5)
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What a reasonable person in the UK would expect in relation to the
performance of the type of function or activity concerned
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In deciding what such a person would expect where the performance is not
subject to the law of any part of the UK, any local custom or practice should
be disregarded unless it is permitted or required by the written law of the
country or territory concerned (sections 5(1) and 5(2))
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"Written law" means law contained in any written constitution or provision
made by or under legislation, or any judicial decision applicable to the
country or territory concerned and which appears in published written
sources (section 5(3))
Bribery of foreign public officials (section 6)
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A person is guilty of the offence if his intention is to influence the official in
the official's capacity as a foreign public official
A foreign public official includes, among others, government officials and
those working for international organisations
The offence does not cover accepting bribes, only offering, promising or
giving bribes
Bribery of foreign public officials (section 6)
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P commits the offence if and only if, directly or through a third party, P offers,
promises or gives any financial or other advantage to the foreign public official (F) or
to another person at F's request or with F's assent or acquiescence (section 6(3)(a))
and F is neither permitted nor required by the written law applicable to F to be
influenced in F's capacity as a foreign public official by such an offer, promise or gift
(section 6(3)(b))
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It does not matter whether the offer, promise or gift is made directly to the official or
through a third party (section 6(3)(a))
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P must intend to influence F in the performance of F's functions as a public official,
including any failure to exercise those functions and any use of his position, even if he
does not have authority to use the position in that way (section 6(4))
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P must also intend to obtain or retain business or an advantage in the conduct of
business (section 6(2)), which includes what is done in the course of a trade or
profession (section 6(8))
Failure of commercial organisations to prevent bribery (section 7)
A relevant commercial organisation (C) is guilty of an offence:
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if a person associated with C bribes (within the meaning of sections 1 and 6)
another person
and in doing so, is intending to obtain or retain business or a business
advantage for C
The offence can be committed in the UK or overseas
Under section 7(2) C has a defence if it can show that it had in place
adequate procedures designed to prevent bribery
Relevant Commercial Organisations
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A body which is incorporated under the law of any part of the UK and which
carries on a business anywhere (whether there or elsewhere)
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Any other body corporate (wherever incorporated) which carries on a
business, or part of a business, in any part of the UK
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A partnership which is formed under the law of any part of the UK and
which carries on a business whether there or elsewhere
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Any other partnership (wherever formed) which carries on a business, or
part of a business, in any part of the UK
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For the purposes of section 7, a trade or a profession is a “business”
What does "associated with" mean?
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A person (A) is associated with C if (disregarding any bribe under
consideration), A is a person who performs services for or on behalf of C
It does not matter in what capacity A performs services for or on behalf of
C
If A is an employee, it will be presumed (unless the contrary is shown) that
A is a person who performs services for or on behalf of C
Offences by corporate bodies
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If the offence is proved to have been committed with the consent or
connivance of a senior officer of a body corporate, or a person purporting
to act in such a capacity, the senior officer (as well as the body corporate)
is guilty of the offence
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“Senior officer” includes not only directors but senior managers and the
company secretary
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If no act or omission forming part of the offence takes place in the UK a
senior officer will not be guilty of the offence unless he or she has a close
connection with the UK
Penalties (section 11)
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Section 11 provides for the following penalties
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An individual guilty of an offence under sections 1, 2 or 6 is liable
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On summary conviction, to imprisonment for a maximum term of 12
months imprisonment or a fine not exceeding the statutory maximum on
the standard scale of fines (currently £5,000) or both
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On conviction on indictment, to imprisonment for a maximum term of ten
years, or to a fine, or both (section 11(1))
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A company guilty of an offence under sections 1, 2, 6 or 7 is liable
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On summary conviction, to a fine not exceeding the statutory maximum
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On conviction on indictment, to a fine (section 11(2))
Penalties (section 11)
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A person guilty of an offence under section 7 is liable on conviction on
indictment to a fine
Note, therefore, that both a company and its director could be subject to
criminal penalties
“Close connection”
A person has "a close connection with the UK" if they are any of the following:
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British citizen or various other categories of British passport holder
resident of the UK
body incorporated under the law of any part of the UK
Scottish partnership
Prosecutions
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Consent of one of the following required for a prosecution
The Director of Public Prosecutions
The Director of the Serious Fraud Office
The Director of Revenue and Customs Prosecutions
Practical implications for organisations
All organisations should:
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Prohibit bribery in any form whether direct or indirect and by or for the
organisation
Commit to implementing systems to counter bribery
Larger companies' anti-bribery systems and procedures could additionally include:
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A statement of values
A code of conduct
Detailed policies and procedures, including, for example, policies on gifts,
hospitality, facilitation payments, vetting outside agents and advisers, lobbying
and political contributions
Risk management procedures, for example, regular auditing of compliance
Training and guidance
Internal controls
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Oversight
Monitoring and assurance
Whistleblowing procedures
Public-sector organisations
Two key roles when preventing or eliminating bribery and corruption:
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Eliminating bribery and corruption themselves (for example, not paying or
accepting any bribes)
Seeking to eliminate bribery and corruption in the private sector
Bribery
Jon Taylor
24 June 2010