5End of Chapter Questions
1. Bribery and Corruption 169 2 The UK Bribery Act (2010)
3. The Foreign Corrupt Practices Act (FCPA) (1977)
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1.
Bribery and Corruption
Learning Objective
6.1.1 Know the difference between bribery and corruption
We looked at the difficulties of defining corruption in Section 1 of the previous chapter. Bribery is only one offence, within the wider term of corruption, which also includes embezzlement and illicit enrichment, and is a single term that captures conduct and behaviour, which reflects private or partisan interests over official duties and responsibilities. In general, bribery is a transactional offence where a person is persuaded to act in favour of the person offering, promising to offer or giving the bribe, without the knowledge of his employer, and in contradiction of his official duty. This offence underlines the point that the benefit or advantage is the criterion that persuades the recipient to act (or not act) as the payee intends, and it is from that basis that the relevant decisions or actions flow.
Bribery is invariably criminalised and, while there are variations in terms of the wording or extent of the legislation, most countries have broadly similar laws. It is sometimes useful, therefore to distinguish between criminalised offences, particularly bribery, and the range of offences that are often labelled corrupt. In the UK, for example, corruption is very much seen as synonymous with bribery and the new act, which repeals the previous Prevention of Crime Acts, is termed the Bribery Act.
2.
The UK Bribery Act (2010)
2.1
Factors Behind the UK Bribery Act 2010
Learning Objective
6.2.1 Know the factors that led to the UK Bribery Act (2010)
The main factors behind the introduction of a new bribery act in the UK were a series of scandals, reviews and international developments which set in train (a) a general view that the existing legislation required reform, and (b) the view that the UK legislation had to match those international standards to which it had subscribed. These included the following stages of development:
• A series of scandals from the 1970s, such as the Poulson case, led to a Royal Commission which proposed a review of the existing three Acts, in part in relation to the immunity of MPs and in part because of the lack of coherence of the existing legislation.
• The 1995 Nolan Committee on Standards in Public Life, reviewing various personal and financial scandals surrounding the end of the government of John Major, recommended that the issue of immunity of MPs be revisited, usefully combined with the consolidation of the statute law on bribery (which the later iteration of the Committee noted had been agreed by the government, but not done). It suggested that this was also something the Law Commission should undertake.
• In 1997, the Law Commission, which regularly reviews UK legislation, produced a report for the government on the corruption laws1. It noted that:
although the number of prosecutions for corruption in the past ten years has been very small, the conclusion of the Law Commission that the present law was in an unsatisfactory state has been generally accepted
and concluded that the present arrangements were obscure, complex, inconsistent and insufficiently
comprehensive. It proposed repeal of all or parts of the existing relevant acts and their replacement by
a modern statute and incorporation of the common law offences of bribery. The new offences, drawn from these existing statutes and common law, would apply to both the public and the private sector. As the report noted, it was widely recognised that it was no longer useful or practicable to distinguish between the agents involved in public authorities and those in the private sector, given privatisation, the contracting out of government services and the general blurring of the boundaries.
• At the same time, however, the 1998 ratification by the UK of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions – which sought to encourage developed countries to agree to try company officials and others who pay bribes overseas in their own countries– saw its provisions included as part of a hurried Act of Parliament, which mainly addressed anti-terrorism matters, brought about by the terrorist attacks of 11 September 2001. Sections 108–110 of the Anti-Terrorism, Crime and Security Act 2001 introduced the areas of the Convention that had been required of the UK in relation to overseas jurisdiction since ratification (although the Act did not address the position of MPs).
• The sixth report of the Committee on Standards in Public Life2 in 2000 urged the Government to:
introduce its proposed legislation on the criminal law of bribery as soon as possible in order to remove any uncertainty regarding the scope of the statutory offence of bribery and to make clear that members of both Houses of Parliament, acting in their capacity as members, and those who bribe a member of either House of Parliament, fall within its scope.
• It should be noted that around this time the UK had signed or ratified a number of regional and international conventions and other formal documentation, including: the Protocol to the Convention on the protection of the European Communities financial interests; the Council of Europe Criminal Law Convention on Corruption; the EU Convention on the fight against corruption involving officials of the European communities or officials of member states of the EU; and UNCAC (which was signed in 2003 and ratified in 2006).
The proposed bill was announced by the government in 2000, whose White Paper ‘Raising Standards
and Upholding Integrity’3 made it plain that it accepted in principle the proposals made by the Law
Commission in its report on the reform of the law of corruption. The purpose of the paper was to set out how the government intended to meet its objectives of clarifying and updating the law, so as to put beyond doubt its ability and commitment to fulfil its domestic and international commitments to combating corruption in both the public and private sectors. At the same time, the issue of overseas corruption was the subject of pressure from international and domestic agencies, as well as parliamentary committees.
It took a number of years, however, before the necessary legislation was drafted and brought before Parliament. The Act has given rise to another widely used acronym; ABC (Anti-Bribery and Corruption).
1 Law Commission (1997). Legislating the Criminal Code: Corruption. Consultation Paper No 145. London: Law Commission
2 Committee on Standards in Public Life (2000). Reinforcing Standards; Review of the First Report of the Committee on
Standards in Public Life. 6th Report. London: The Stationery Office.
3 The Stationery Office, Raising Standards and Upholding Integrity: The Prevention of Corruption, found at: http://www.
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2.2
The Extra-Territorial Reach of the Act
Learning Objective
6.2.2 Know the extra-territorial reach of the Act
The Act now is explicit in that the offences it covers can take place anywhere in the world, but be treated as though they had taken place in the UK, for the purposes of investigation and prosecution. The requirement is that a person’s acts or omissions are done or made outside the UK and would form part of such an offence if done or made in the UK, and that person has a close connection with the UK. In such circumstances, proceedings for the offence may take place anywhere in the UK.
A close connection with the UK means that they are a UK subject, a British overseas citizen, an individual ordinarily resident in the UK, or body incorporated under the law of any part of the UK. Similar provisions apply to all UK businesses and are also intended to apply to non-UK companies for a failure to prevent bribery if they do business in the UK.
2.3
Offences Introduced in the UK Bribery Act (2010)
Learning Objective
6.2.3 Know the offences introduced by the UK Bribery Act (2010): bribing another person; receiving bribes; bribery of a foreign public official (FPO); failure of commercial organisations to prevent bribery
2.3.1 Main Offences
The main offences by section are:
• General bribery offences
Section 1 – Offences of bribing another person. Section 2 – Offences relating to being bribed. • Bribery of foreign public officials
Section 6 – Bribery of FPOs.
• Failure of commercial organisations to prevent bribery
2.3.2 Section 1 – Bribing Another Person
There are two ways a person can bribe another – either to get them to do an improper act (or reward them for so doing) or by offering something the acceptance of which itself would be improper. A bribe does not have to precede the improper act; it could be given as a reward after the fact.
It is an offence if you offer, promise or give a financial or other advantage to another person, and intend the advantage to induce a person to perform a relevant function or activity improperly, or to reward a person for the improper performance of such a function or activity. It does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.
It is an offence if you offer, promise or give a financial or other advantage to another person, and know or believe that the acceptance of the advantage will itself constitute the improper performance of a relevant function or activity. It does not matter whether the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned. It also does not matter whether the advantage is offered, promised or given directly or through a third party.
One thing to note in respect of these offences is that a bribe does not have to consist of giving money – the Act refers to financial or other advantage.
2.3.3 Section 2 – Receiving Bribes
The offences in this section are in effect the mirror-image of the previous section – if a bribe is being given, it must also be an offence to accept it, or indeed to request a bribe. Again, the bribe need not be money; it could be some other form of advantage. It should be noted that the person receiving the bribe need not be the person who commits the improper performance; they may arrange for the improper performance by another person.
It is an offence if you request, agree to receive or accept a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly, whether by yourself or another person. The offence happens where you request, agree to receive or accept a financial or other advantage, as a reward for the improper performance (whether by you or another person) of a relevant function or activity for yourself, or by another person at your request or with your assent or acquiescence.
It is also an offence if you request, agree to receive or accept a financial or other advantage, and the request, agreement or acceptance itself constitutes the improper performance by yourself of a relevant function or activity. The offence happens where, in anticipation of or in consequence of your requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly by yourself, or by another person at your request or with your assent or acquiescence.