ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
cases (numbered sequentially following Sec - tion 1) in which a person would be guilty of an offence of being bribed. • Case 3 – where a person requests, agrees to receive, or accepts a financial or other advantage, intending that, in consequence, a relevant function or activity should be per - formed improperly (whether by that person or another person). • Case 4 – where a person requests, agrees to receive, or accepts a financial or other advantage, and the request, agreement, or acceptance itself constitutes the improper performance by that person of a relevant function or activity. • Case 5 – where a person requests, agrees to receive, or accepts a financial or other advantage as a reward for the improper per - formance (whether by that person or another person) of a relevant function or activity. • Case 6 – where, in anticipation of or in con - sequence of a person requesting, agreeing to receive, or accepting a financial or other advantage, a relevant function or activity is performed improperly by that person or by another person at the first person’s request or with the first person’s acquiescence. In cases 4–6, it does not matter whether the person knows or believes that the performance of the function or activity is improper. In case 6, where a person other than the recipient of the bribe is performing the function or activity, it does not matter whether that other person knows or believes that the performance of the function or activity is improper. The “relevant function or activity” to which a bribe relates As can be seen from Section 3 of the Act, the general offences of bribery have an extremely
broad scope and can be committed in both pub - lic and private/commercial spheres. The function or activity to which a bribe relates is relevant if it is: • any function of a public nature; • any activity connected with a business; • any activity performed in the course of a per - son’s employment; or • any activity performed by or on behalf of a body of persons (whether corporate or unin - corporate). In addition, one of the following conditions must also be met. • 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. It should be noted that the relevant function or activity need not have a connection to the UK and can be performed in a country or territory outside the UK. The test for whether the relevant function or activity has been performed improperly (set out in Sections 4 and 5 of the Act) is what would be expected by a reasonable person in the UK in relation to the performance of that function or activity. The Act specifically disregards local custom or practice if that relevant function or activity is not subject to UK law, save for where it is permitted or required by the written law of another country. This is significant, as it deliber - ately attempts to negate any argument that the payment of a bribe was necessary because such
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