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Individual Offences

 

Bribing another person (Section 1)

The following elements are required to establish this offence:

  1. A person (the "briber") must offer, promise or give a financial or other advantage to another person;
  2. The briber must:
    • Intend the advantage either to induce a person to improperly perform a function or activity or reward a person for improperly performing a function or activity (case 1); or
    • Know or believe that the acceptance of the advantage would itself constitute the improper performance of a function or activity (case 2).

This, for example, can be a public activity or an activity connected with a business, trade or profession, or on behalf of a company.
An omission can in some circumstances amount to improper "performance", e.g not awarding a contract to a particular company's competitor.
The bribe does not have to be made directly. It can be given through a third party.
The meaning of "financial or other advantage" has not been defined, but it is clear that the bribe does not have to be monetary.  The provision of goods and services or a favour in return, for example, will be enough.
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Being Bribed (Section 2)

  • A person requests, agrees to receive or accepts a financial or other advantage intending that a function or activity should be performed improperly as a result, whether by himself or another person (case 3);
  • A person requests, agrees to receive or accepts a financial or other advantage which in itself constitutes the improper performance of a function or activity by him (case 4);
  • A person requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance of a function or activity (case 5);
  • Where, in anticipation or as a result of a person requesting, agreeing to receive or accepting a financial or other advantage ("the person being bribed"), a function is performed improperly, whether by the person being bribed, by someone else at the request of the person being bribed or with the agreement or acquiescence of the person being bribed (case 6).

The "function" or "activity" in question includes any function of a public nature or any activity connected with a business, trade or profession. This also covers activities by or on behalf of any corporate or unincorporated body or performed in the course of a person's employment.
The function or activity does not need to have any connection to the UK and may be carried out in the UK or abroad.
Not every irregular performance engages the law of bribery. There must be improper performance, i.e. it must be shown that the person performing the function/ activity has breached an expectation that he/she will perform it:
  • In good faith;
  • Impartially or
  • In accordance with a position of trust.
This is the objective element, in that the test of what is expected, is a test of what a reasonable person in the UK would expect of a person performing the type of function or activity concerned. Where the performance is not subject to the law of any part of the UK, local custom or practice must not be taken into account in determining what a reasonable person would expect, unless it is permitted or required by the written law of the country or territory concerned (this includes judicial decisions published in writing).  

In the cases 4 to 6, it does not matter whether the person being bribed, knows or believes that the performance of the function or activity is improper. Arguably, this will make the offence of being bribed much easier to establish than that of offering a bribe.
individual person

 

Bribery of foreign public officials (Section 6)

In order to establish an offence it must be shown that a person:

  • Intends to influence an official in his capacity as a foreign public official (the "official");
  • Intends to obtain or retain business or an advantage in the conduct of business; and
  • Directly, or through a third party, offers, promises or gives a financial or other advantage that is not legitimately due to the official or another person at the official's request or with his assent or acquiescence. Such an advantage will be legitimately due if permitted under the relevant written law or if he is an official of a public international organisation, which is permitted under the applicable rules of that organisation.
These are organisations whose members are countries or territories (or their governments), or other public international organisations made up of such members.
An intention to influence the official to act, or not to act, and to obtain or retain business/an advantage is enough. Unlike the other offences, "impropriety" is not required. It is irrelevant if the official does not have the authority to use their position in that way or whether the official's actions were "improper".
This offence only applies to public officials being bribed. A foreign public official includes both government officials and those working for international organisations. The term covers any individual who:
  • Holds a legislative, administrative or judicial position of any kind outside of the UK,
  • Exercises a public function for a country or territory outside the UK or one of its public agencies or public enterprises; or
  • Is an official or agent of a public international organisation. These are organisations whose members are countries, territories, governments, and other public international organisations.