Answer ... These specific terms are not defined in the statute. Section 6 of the Bribery Act makes it a criminal offence for a person to directly or indirectly bribe a foreign public official with the intention, by doing so, of:

• influencing him or her in his or her official capacity;
• obtaining or retaining business; or
• obtaining an advantage in the conduct of business.

However, there is an additional requirement for prosecutors to show that the bribe offered to the foreign public official was one that the official was not permitted or required to be influenced by, as determined by the written law applicable to the foreign official.

Answer ... ‘Public official’ is not defined in the Bribery Act, as there is no specific offence under the Bribery Act for bribing a domestic public official. An offence under Section 1 or 2 of the Bribery Act (for more on which see question 2.5) is intended to apply to conduct involving a public official; however, such offences are often charged as an offence of misconduct in public office instead.

A ‘foreign public official’ is defined under Section 6(5) of the Bribery Act as an individual who:

1. Holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or territory outside the UK (or any subdivision of such a country or territory),
2. Exercises a public function –
   
   1. For or on behalf of a country or territory outside the UK (or any subdivision of such a country or territory), or
   2. For any public agency or public enterprise of that country or territory (or subdivision), or
3. Is an official or agent of a public international organisation [i.e., an organisation whose members are countries or a territory; governments of countries or territories; other public international organisations; or a mixture of these Two examples of a public international organisation are the United Kingdom and the World Bank].

Answer ... These specific definitions do not exist within the anti-corruption legislation, as the Bribery Act does not distinguish between bribery in the public and private sectors (save for the Section 6 offence described in question 2.2). The Bribery Act applies to bribery whether it is in the private sector or involves public officials.

Answer ... Under the Bribery Act, a ‘bribe’ is, broadly speaking, a financial or other advantage offered/promised/given, or requested/agreed to be received/accepted, with the intention of inducing or rewarding the improper performance of a relevant function or activity. The Bribery Act therefore criminalises both:

• active bribery – that is, the offering of the advantage (Section 1 of the Bribery Act); and
• passive bribery – that is, the request or receipt of the advantage (Section 2 of the Bribery Act).

Under Section 3 of the Bribery Act, a ‘relevant function or activity’ is defined as any function of a public nature or activity connected with a business performed:

• in the course of a person’s employment or by or on behalf of a body of persons; and
• where the person performing the function or activity is:
• • expected to perform it in good faith;
  • expected to perform it impartially; and/or
  • in a position of trust by virtue of performing it.

Section 4 of the Bribery Act states that a ‘relevant function or activity’ is performed improperly if it is performed in breach of the expectations set out above.

Answer ... In addition to the pre-Bribery Act offences identified in question 1.1 and the offences created by Section 1 (the offering/promising/giving of a bribe), Section 2 (the request/agreeing to receive/acceptance of a bribe) and Section 6 (bribing a foreign public official) of the Bribery Act, the Bribery Act introduced a new offence of a commercial organisation failing to prevent bribery.

Under Section 7, a commercial organisation (ie, a company or partnership) commits an offence (‘failure to prevent’) if it fails to prevent an associated person (defined in question 3.3) from bribing another person with the intention to obtain or retain business, or an advantage in the conduct of business, for the commercial organisation. The sole defence to a failure to prevent offence is for the commercial organisation to prove, on the balance of probabilities, that it had adequate procedures in place designed to prevent associated persons from committing bribery offences. While ‘adequate procedures’ are not defined within the Bribery Act, the Bribery Act 2010 Guidance issued by the Ministry of Justice (MOJ) (which accompanied the introduction of the Bribery Act) contains six principles that companies should bear in mind when putting in place procedures to prevent bribery (see question 4.2). However, the MOJ guidance also does not define ‘adequate procedures’ and has been criticised for not stipulating what would be deemed to be adequate procedures. The House of Lords Select Committee on the Bribery Act has recommended that the MOJ guidance be expanded to provide more examples and to suggest procedures which would, if adopted by small and medium-sized enterprises, be likely to amount to adequate procedures.

Answer ... Yes. Individuals and companies can be prosecuted for pre-Bribery Act offences and can also both be prosecuted under Sections 1, 2 and 6 of the Bribery Act. However, with regard to companies, to establish corporate criminal liability, the prosecution must prove that a senior individual or individuals in the concerned company who represent its ‘directing mind and will’ have committed the offence in question. It is well recognised in the United Kingdom – particularly given the complex structures that apply to many large and sophisticated companies – that the need for prosecutors to identify the directing mind and will can be a difficult exercise.

Failure to prevent is a specific standalone offence that applies to companies only and which negates the need for the prosecution to prove that the offence was committed by the directing mind and will of the company (see question 2.5).

If it is proved that a company committed an offence under Section 1, 2 or 6 of the Bribery Act with the consent or connivance of senior management of the company, then by virtue of Section 14 of the Bribery Act, senior officers of the company will also be deemed guilty of the same offence in an individual capacity and will be liable to prosecution, provided that they have a close connection with the United Kingdom.

Answer ... Yes. A prosecution of a foreign company for offences under Section 1, 2 or 6 of the Bribery Act can take place even where none of the conduct took place in the United Kingdom; however, the person responsible for the relevant conduct will still need to have a close connection with the United Kingdom. Section 12(4) of the Bribery Act defines a ‘close connection with the United Kingdom’ as meaning that, at the time of the alleged offence, the person was:

• a British citizen;
• an individual ordinarily resident in the United Kingdom; or
• a body incorporated under any law of the United Kingdom.

A foreign company can also be prosecuted for the failure to prevent offence, provided that it carries on a business or part of a business in any part of the United Kingdom. While the failure to prevent offence stipulates that an associated person can only bribe another person if he or she is, or would be, guilty of an offence under Section 1 or 6 of the Bribery Act, the offence can still be made out notwithstanding that the associated person does not have a close connection with the United Kingdom. A foreign company can thus still be prosecuted for failure to prevent, even where the conduct takes place outside of the United Kingdom.

Answer ... Yes. Section 12 of the Bribery Act makes it plain that offences under Sections 1, 2 and 6 can be committed even where the offence takes place outside the United Kingdom. In order for the Bribery Act to apply in those circumstances:

• the person’s acts or omissions performed outside of the United Kingdom must have formed part of an offence under the Bribery Act had they been committed in the United Kingdom; and
• the person must also have a close connection with the United Kingdom (as defined in question 2.7).

As set out in question 2.7, the failure to prevent offence has extraterritorial reach.