Each of the offences has the potential for extra-territorial
application, although the Guidance purports to narrow the Act's
reach over non-UK corporations.
In respect of offences (1)-(3), the courts will have
jurisdiction where any act or omission which forms part of the
offence is committed in the UK, or where the offences are committed
by a person (including a corporate entity) "closely
connected" to the UK. Under the Act, a person has a close
connection if, and only if, they are (a) a British citizen, subject
or similar, (b) an individual ordinarily resident in the UK, or (c)
a body incorporated under the law of any part of the UK or a
Scottish partnership. Where the offence is committed by a corporate
entity, the Act will apply such that any senior officer of that
corporate entity, or person purporting to act in such capacity, may
be guilty of an offence if they have consented or connived in the
commitment of the offence.
The Act has even wider extra-territorial reach in relation to
the corporate offence, as it has potential application to every
commercial organisation that "carries on a business, or part
of a business" in the UK. The Act therefore covers non-UK
corporate entities with a business presence in the UK, regardless
of whether the bribe is paid in relation to that business. The
Guidance indicates that the test of business presence is to be
applied on a common sense basis. It was not the UK Government's
intention that either a listing on the London Stock Exchange or the
existence of a UK subsidiary should in themselves be enough to
satisfy the test of carrying on a business in the UK. This
potentially reduces the reach of the Act over non-UK corporations
dramatically. However, as the courts will ultimately have
responsibility for interpreting this test, corporations with such
connections to the UK would be prudent not to rely on it yet. In
particular, if a UK subsidiary does not act independently of its
parents or other group companies, the courts may consider that the
test is readily met.
The ramifications for those found to be in civil contempt (as presided over by the High Court), and, in particular, the court’s power to enforce such a finding against a contemnor who resides overseas, are more far reaching than many (civil) lawyers realise.
The Bribery Act has made the news again following the conviction of a would be taxi driver. Earlier this week, at Minshull Street Crown Court in Manchester, Mr Mawia Mushtaq became the second person convicted of an offence under the Bribery Act by attempting to bribe a Licensing Officer.
In the previous edition of Corporate Focus we reported that the Bribery Act 2010 (the Bribery Act) came into force on 1 July 2011 and we considered procedures that commercial organisations could put into place in order to prevent bribery.
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