Answer ... The terms ‘public corruption’ and ‘bribery of a public official’ are not defined in the Bribery Act. However, the offences detailed in Sections 1, 2, 6 and 7 of the act cover such situations, as explained in question 1.1.
Section 6 of the Bribery Act makes it an offence to promise, offer or give a bribe to a foreign public official (see question 2.2). The other sections of the Act make no distinction between private and public bribery.
Answer ... The term ‘public official’ is not defined in the Bribery Act. ‘Foreign public official’ is defined under Section 6(5) as someone who holds a legislative, administrative or judicial position of any kind, whether appointed or elected, in a country or territory outside the United Kingdom (or any subdivision of such a country or territory) and exercises a public function. A ‘public function’ is defined as being for, or on behalf of, a country or territory outside the United Kingdom (or any subdivision of such a country or territory), or for any public agency or public enterprise of that country or territory (or subdivision) or acting as an official or agent of a public international organisation, such as the United Nations or the World Bank.
The offence of bribery of a foreign public official does not require an intention of the person bribing to induce improper conduct or a belief that the bribe will result in such conduct. All that is required is that the person offering the bribe intends to influence an official when he or she is acting in an official capacity, so that the person can obtain or retain business or an advantage in the conduct of business.
Answer ... The terms ‘private corruption’ and ‘bribery in the private sector’ are not defined in the Bribery Act. The act does not distinguish between public officials and private individuals. The focus of misconduct is the function that the person is performing, regardless of the sector in which that function is being performed.
Section 3 of the act defines the scope of a function or activity, and what is considered ‘relevant’ for the purposes of Sections 1 and 2.
There are four possible relevant functions or activities:
- any function of a public nature;
- any activity connected with a business;
- any activity performed in the course of a person’s employment; and
- any activity performed by on or behalf or a body of persons (whether corporate or unincorporated.
To qualify, however, the person performing the function or activity either must be expected to have performed in good faith or impartially, or must have been in a position of trust by virtue of performing it.
Answer ... ‘Bribery’ under the Bribery Act is defined as offering, promising or giving a financial or other advantage intending to induce or reward improper conduct, or knowing or believing its acceptance to amount to improper conduct. ‘Improper’ means breaching an expectation of good faith, impartiality or trust.
The bribe need not be given; merely offering it – even if it is not accepted – can constitute bribery.
A person being bribed commits an offence if he or she requests, agrees to receive or accepts a financial or other advantage where that amounts to improper conduct, or where such an advantage is accepted with the intention that improper conduct will follow or as a reward for improper conduct that has been carried out.
Answer ... As outlined in question 1.1, the criminal offences are as follows.
Sections 1 and 2 of the Bribery Act 2010 cover the two general offences of offering, promising or giving an advantage, and requesting, agreeing to receive or accepting an advantage in circumstances involving the improper performance of a relevant function or activity.
‘Relevant function or activity’ means a public or business activity which a reasonable person in the United Kingdom would expect to be performed in good faith, impartially or in a particular way because the person performing it is in a position of trust. ‘Improper performance’ means breach of that expectation.
These offences cover both public and private sector bribery.
Under Section 6 of the act, it is an offence to promise, offer or give an advantage (financial or otherwise) to a foreign public official with the intention of influencing that official and obtaining/retaining business or a business advantage. To be guilty under this offence, there need not be evidence of intention on the part of the person bribing to induce improper conduct, or knowledge or belief that acceptance of the bribe will amount to improper conduct – only that the person bribing intends to influence the official acting in his or her official role.
Section 7 of the Bribery Act created the offence of failure by a commercial organisation to prevent a bribe being paid to obtain or retain business or a business advantage. The defence to this offence is that the organisation had adequate procedures in place to prevent bribery.
Answer ... Individuals can be prosecuted under Sections 1, 2 and 6 of the Bribery Act. A company can also be prosecuted under these sections if the prosecution can show the necessary mental element for the offence to be attributed to the ‘directing mind’ of the company.
Under Section 7 of the Bribery Act 2010, only the company can be prosecuted for the offence of failure to prevent bribery.
Answer ... The Bribery Act covers activity carried out by all companies and individuals in the United Kingdom. It also covers activity conducted outside of the United Kingdom, provided that the company or individual concerned has a close connection to the United Kingdom.
A ‘close connection’ includes:
- a company incorporated in the United Kingdom;
- a company that does business in the United Kingdom; and
- a foreign company that has a UK-based subsidiary.
A foreign company that carries out any part of its business in the United Kingdom could be prosecuted for failure to prevent bribery even where the bribery takes place outside the United Kingdom and the benefit or advantage to the company is gained outside the United Kingdom.
Answer ... Yes. The Bribery Act has extraterritorial reach both for UK companies operating abroad and for overseas companies with a presence in the United Kingdom. In relation to the offences of bribing, being bribed or bribing a foreign public official, provided that the person committing the offence has a close connection with the United Kingdom, that person can be prosecuted for bribery that occurs outside of the United Kingdom.
Provided that a company is incorporated in the United Kingdom or carries on business within the United Kingdom (regardless of where it was incorporated), it can be liable under the Section 7 offence of failing to prevent bribery, regardless of where the bribery takes place.
Incidentally, the case of KBR v SFO (2018) demonstrated the extraterritorial reach of the SFO’s powers under Section 2 of the Criminal Justice Act (see question 1.4). The SFO investigated corruption relating to a UK subsidiary of US-based KBR. The parent company has no place of business in the United Kingdom and conducts no business in the United Kingdom. The SFO issued a Section 2 notice to compel KBR to produce documents. Prior to this case, Section 2 notices were not thought to have an extraterritorial effect; but the High Court ruled that these notices can require the production of documents held overseas, provided that the recipient of the notice has a ‘sufficient connection’ to the United Kingdom.
KBR was deemed to have a sufficient connection, as the payments made by its subsidiary required the express approval of the parent company and were processed by the parent company.