UK Law and Practice Contributed by: Neil Swift, Jasvinder Nakhwal, Charlotte Tregunna and Rachel Cook, Peters & Peters
Failure to Prevent Bribery Under Section 7 of the BA 2010, a “relevant commer - cial organisation” is criminally liable if a person associ - ated with it bribes another person with the intention of obtaining or retaining business for the commercial organisation or an advantage in the conduct of its business. A “relevant commercial organisation” is: • a UK-incorporated entity or partnership which carries on a business (whether in the UK or else - where); or • any other entity or partnership which carries on business in any part of the UK. A person is “associated” with a commercial organisa - tion if that person performs services for or on behalf of the commercial organisation. “Bribery” here encompasses the offences under Sec - tion 1 or 6. It does not matter whether the person has been prosecuted for such an offence. It is a defence if the commercial organisation can prove that it had in place adequate procedures designed to prevent persons associated with the organisation from undertaking such conduct. Jurisdiction The territorial scope of offences committed under Section 1, 2 or 6 is notably wide. Proceedings for a Section 1, 2 or 6 offence may take place in the UK even if an act or omission that forms part of the offence did not take place in the UK. This can happen if: • the offensive behaviour that took place outside of the UK would be an offence if it had taken place in the UK; and • the person has a “close connection” with the UK. A person has a “close connection” with the UK if, at the time of the offence, the person was any of the following: • British citizen
The BA 2010 makes no allowance for facility or expe - diting payments (sometimes referred to as “grease” payments). Hospitality and facility payments may be caught by the provisions of the BA 2010 if the requisite intention can be established. Bribery of Foreign Officials Under Section 6 of the BA 2010, it is a criminal offence to bribe a foreign public official. Definition of “foreign public official” A foreign public official is an individual who fulfils at least one of the following conditions: • The individual holds a legislative, administrative or judicial position outside of the UK. The individual can have just been elected. • The individual exercises a public function for a country outside the UK or for a public agency or enterprise of that country (this would include employees of state-controlled companies). • The individual is an official or agent of a public international organisation. Offence To be found guilty of an offence under Section 6, a person must have bribed a foreign public official and the person’s intention must be to influence the foreign public official in their capacity as such. The person must also intend to obtain or retain business or an advantage in the conduct of business. A person bribes a foreign public official if: • the person, directly or through a third party, offers, promises or gives a financial advantage either to the foreign public official or to another person at the official’s assent or acquiescence; and • the foreign public official is neither permitted nor required by the law applicable to them to be influenced as a foreign public official by the offer, promise or gift. There is no requirement under Section 6 for the public official to have acted improperly.
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