1. Bribery in the home (private to public)
1.1 The Legal Environment
The Bribery Act of 2010 establishes a general bribery offense that punishes both the receipt and payment of bribes. Bribes paid in the commercial sector and those paid in the public sector have no distinction.
1.2 What is the definition of bribery?
Bribes paid to a public official are not differentiated from bribes given in the private sector under UK anti-bribery legislation.
1.3 What is a public official?
UK anti-corruption legislation does not distinguish between bribes paid to public officials and bribes given to private individuals.
1.4 Bribery’s consequences for individuals and businesses/legal entities
Bribes paid to public officials and bribes made to private sector employees are not differentiated under UK anti-bribery legislation.
1.5 Contributions from politics
Although the general offenses of giving or receiving a bribe may be applicable, the Bribery Act does not include any particular penalties in connection to political contributions.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, amongst others)
Corporate hospitality will only be considered one of the general offenses if the individual bribing or being bribed engages in improper behavior. A breach of an expectation of good faith, impartiality, or trust is unlikely to occur if the act of hospitality is routine and inexpensive.
The UK government has affirmed that laws should not be used to punish genuine and appropriate hospitality, including that extended to foreign public officials, but it believes that hospitality is a matter best handled by prosecutors rather than lawmakers.
2. Bribery – private to private
2.1 The Legal Environment
The Bribery Act of 2010 establishes a general bribery offense that punishes both the receipt and payment of bribes. Bribes paid in the commercial sector and those paid in the public sector have no distinction.
2.2 What is the definition of bribery?
A bribe is given when someone accepts, offers, or delivers a bribe with the intent of I having a function performed “improperly” as a result of the bribe; or (ii) having the bribe be or amount to a compensation for “improper” performance.
When a function is found to have been carried out “improperly,” the Bribery Act specifies three examples:
The person performing the function or activity is expected to do it in good faith, but does not.
The person doing it is supposed to be neutral, but he or she isn’t.
The person is in a position of trust yet violates it.
The following are the kind of functions covered under the Bribery Act:
Functions of a public nature (a) Activities linked with a company (b) Activities undertaken in the course of a person’s employment (c) Activities performed by or on behalf of a group of people (d) An activity undertaken by or on behalf of a group of people
When a person “associated with” a corporate or commercial organization bribes another person with the intent to obtain or retain business for the organization or to obtain or retain an advantage in the conduct of business for the organization, the organization commits an offense under Section 7 of the Bribery Act. This is a strict liability infraction that can occur in the United Kingdom or elsewhere. Keep the following in mind:
When a person acts on behalf of an organization, that person is considered “connected with” the firm for these reasons. This could be an employee, an agency, or a subsidiary of the company. Associated persons include contractors, suppliers, joint venture businesses, and joint venture partners.
While there is a rebuttable presumption that an employee acts on behalf of his or her employer, an individual’s association will be evaluated by all relevant facts, not just the individual-organization link.
Proving that an organization had “appropriate processes” in place to avoid bribery is a defense.
2.3 Private bribery consequences for persons, businesses, and legal bodies
A person convicted of any of the general bribery offenses may face the following penalties: I up to ten years in jail; and/or (ii) an unlimited fine.
A corporation or partnership that commits any of the general bribery offenses faces an unlimited fine and automatic and permanent disqualification from bidding on public contracts if convicted on indictment.
A conviction under Section 7 of the Bribery Act will result in a discretionary, rather than an obligatory, ban from bidding on government contracts. When an organization is convicted of bribery, senior officers who consented to or connived in the conduct might be charged with the same crime.
In addition, the Serious Fraud Office (SFO) will be allowed to recover property obtained via unlawful conduct using civil recovery authorities rather than resorting to criminal prosecution.
2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, amongst others)
If there is improper conduct on the side of the person bribing or being bribed, corporate hospitality will only amount to one of the general bribery offenses. If the hospitality is ordinary and inexpensive, it is unlikely to be a breach of a good faith, impartiality, or trust requirement.
The administration has confirmed that the legislation should not be used to punish reasonable and reasonable hospitality, including that extended to foreign public officials; however, it believes that hospitality is a matter best handled by prosecutors rather than Parliament.
3. Foreign public officials’ corruption
3.1 The Legal Environment
Bribery of foreign public officials is a specific violation under the Bribery Act (FPOs).
3.2 Definition of foreign public officials’ corruption
In general, an offense is committed when a person proposes, promises, or grants a financial or other advantage to an FPO in his role as an FPO (or to a third party at the FPO’s request) with the intent to obtain or keep business or a business advantage.
When the FPO is either permitted or required by the written legislation relevant to the FPO to be influenced in his or her role as an FPO, the infraction is not committed. In practice, this is only likely to afford protection in the very rare cases where payment to the FPO is clearly permitted or required by law.
When a person “associated with” a company or another commercial organization bribes an FPO with the intent to obtain or retain business for the organization or to obtain or retain an advantage in the conduct of business for the organization, the company or other commercial organization commits an offense. This is a strict liability infraction that can occur in the United Kingdom or elsewhere.
Keep the following in mind:
When a person acts on behalf of an organization, that person is considered “connected with” the firm for these reasons. This could be an employee, an agency, or a subsidiary of the company. Associated persons include contractors, suppliers, joint venture businesses, and joint venture partners.
While there is a rebuttable presumption that an employee acts on behalf of his or her employer, an individual’s association will be evaluated by all relevant facts, not just the individual-organization link.
Proving that an organization had “appropriate processes” in place to avoid bribery is a defense.
3.3 Explanation of the term “foreign public official”
An FPO is defined as someone who holds a legislative, administrative, or judicial position of any kind; performs a public function for or on behalf of a country or territory outside the UK, or any public agency or public enterprise of that country or territory; or is a representative of a public international organization. FPOs are not foreign political parties or candidates for foreign political office.
3.4 Consequences of Foreign Public Official Corruption
(a) In the case of the individuals involved
A person convicted of bribing a foreign public official faces a maximum sentence of ten years in prison and/or an unlimited fine.
(b) For a business or legal organization
If a corporation or partnership is proven to have bribed an FPO, they will face an unlimited penalties as well as an immediate and permanent ban from competing for government contracts.
When an organization is convicted of bribery, senior officers who consented to or connived in the conduct might be charged with the same crime.
In addition, the SFO will be able to recover property obtained through unlawful behavior using its civil recovery capabilities rather than resorting to criminal prosecution.
3.5 Hospitality expenses are subject to a cap (gifts, travel, meals, entertainment, amongst others)
If the person bribed engages in improper behavior, corporate hospitality will only be considered one of the general violations. If the hospitality is ordinary and inexpensive, it is unlikely to be a breach of a good faith, impartiality, or trust requirement.
The administration has confirmed that the legislation should not be used to punish reasonable and reasonable hospitality, including that extended to foreign public officials; however, it believes that hospitality is a matter best handled by prosecutors rather than Parliament.