The Act contains four main criminal offences:
- Offering, promising or giving a bribe in exchange for improper performance of a function or activity ('active bribery');
- Requesting, agreeing to receive or accepting a bribe in exchange for improper performance of a function or activity ('passive bribery');
- Bribing a foreign public official (the 'foreign public official offence'); and
- Failure by a commercial organisation (which includes a company or partnership) to prevent a person associated with it from committing bribery in order to gain, or retain, a business advantage (the 'corporate offence'). Critically, the burden is placed on the commercial organisation to prove it had "adequate procedures" (such as a rigorous internal compliance programme) in place to prevent bribery (the 'adequate procedures defence').
The key offences are designed to catch all forms of bribery and are therefore extremely broad. In particular:
- There is no precise definition of a bribe, with the Act merely referring to a "financial or other advantage." Accordingly, any payment, gift, or other form of benefit may be caught.
- The Act covers private bribery, in addition to bribing a public official, thereby expanding the scope of the Act well beyond that of the US Foreign Corrupt Practices Act (the "FCPA"). The terms "function" and "activity" are widely defined to include not only any public function, but also: (i) any business activity; (ii) any activity performed in the course of employment, and (iii) any activity performed on behalf of a body of persons (corporate or otherwise) thereby extending the reach of the provisions to agents and external third parties. The relevant "function or activity" need not have a connection to the UK.
- "Improper performance" means a breach of the standard that a reasonable person in the UK would expect in relation to a duty of good faith, impartiality or a position of trust.1 By imposing this standard, the provisions explicitly disregard the local customs or practices existing outside the UK which might otherwise be applied to soften the test.2
- The Act covers bribery in relation to both acts and omissions. As well as covering two-party situations, where party A pays a bribe to party B, in exchange for improper performance by party B; the provisions also catch situations involving a third party, such as where the bribe is paid by, paid to, or the improper performance of an activity or function is by party C.
- The corporate offence of failure to prevent bribery covers all "associated persons". Any person who "performs services" for or on behalf of a commercial organisation is an "associated person". Thus, a corporation could be made liable for failing to prevent bribery in respect of not only its employees (who are deemed to be associated persons under the Act unless contrary intention is shown), agents and subsidiaries, but also joint venture or consortia partners, and potentially external third parties such as suppliers. From a financial services perspective, the legislation could extend to trustees, custodians and even insurers under the Act.
- Further, actual knowledge of the bribe by the commercial organisation need not be proven. The only defence available to the allegation is to show that the commercial organisation had "adequate procedures" in place to prevent its employees, agents and associated third parties from engaging in bribery.
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1 Further, merely accepting a financial or other advantage may itself constitute improper performance of a relevant function or activity.
2 Unless such a custom or practice is permitted or required by the written law applicable in the relevant country.
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