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.
Further points to note
- Importantly, the fact that giving an advantage is customary or apparently officially tolerated will not be enough to show that it is legitimately due. Such a custom must have been recognised by the written local law or a published judicial decision. Unlike the original Law Commission proposals, it is not a defence under the Act for a person to show that they reasonably believed that the advantage in question was permitted under the local law. Organisations and their employees will have to take great care, therefore, that they meet local customs only when these are deemed legitimate under written local law. This is undoubtedly a difficult, politically awkward, and costly exercise.
- The offence will be committed whether the bribe is made directly to the official or through a third party.
- Facilitation payments will be caught.
- Corporate hospitality payments are likely to be caught under this offence and it will be up to prosecutorial discretion as to which cases to pursue.
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, 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.