UK Law and Practice Contributed by: Neil Swift, Jasvinder Nakhwal, Charlotte Tregunna and Rachel Cook, Peters & Peters
Case 5: A person, Person A, is guilty where Person A requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by Person A or not) of a relevant function or
• A person performing the function or activity is expected to perform it in good faith. • A person performing the function or activity is expected to perform it impartially. • A person performing the function or activity is in a position of trust by virtue of performing it. The relevant function or activity does not need to have a connection to the UK and can be performed in a country or territory outside the UK. Has the relevant function or activity been performed improperly? The test to determine the answer to this question is, what would be expected by a reasonable person in the UK in relation to the performance of that function or activity (as set out in Sections 4 and 5 of the BA 2010)? Local custom or practice is not considered if that relevant function or activity is not subject to UK law, unless it is permitted or required by the legislation of another country. How are hospitality and facilitating payments treated? There is no de minimis provision built into the general bribery offences under Sections 1 and 2. There is also no provision in the law that addresses hospitality. As such, in theory, even the smallest gift could be found to be a bribe under the BA 2010. Notwithstanding, there is a general acceptance that gratuities are a staple part of conducting business if done in an appropriate way, which can be recognised by prosecutorial discretion. The Code for Crown Pros - ecutors also includes the public interest test, which might err on the side of non-prosecution in cases relating to small amounts. The Bribery Act 2010: Guidance clarifies that “the more lavish the hospitality or the higher the expendi - ture in relation to travel, accommodation or other simi - lar business expenditure provided to a foreign public official, then, generally, the greater the inference that it is intended to influence the official to grant business or a business advantage in return”. The Bribery Act 2010: Guidance provides additional real-life examples.
activity. Case 6:
A person, Person A, is guilty where in anticipation of or in consequence of Person A requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly: • by Person A; or • by another person at Person A’s request or with
Person A’s assent or acquiescence. In cases 3 to 6 it does not matter:
• whether Person A requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party; or • whether the advantage is (or is to be) for the ben - efit of Person A or another person. In cases 4 to 6, it does not matter whether Person A knows or believes that the performance of the function or activity is improper. In case 6, where a person other than Person A is per - forming the function or activity, it also does not matter whether that person knows or believes that the perfor - mance of the function or activity is improper. What is a “relevant function or activity”? The function or activity to which a bribe relates is rel - evant if it is: • any function of a public nature; • any activity connected with a business; • any activity performed in the course of a person’s employment; or • any activity performed by or on behalf of a body of persons (whether corporate or unincorporated). One of the following conditions must also be met:
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