ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
behaviour is “customary” in another part of the world. Hospitality and facilitating payments The general offences of bribery have no de mini - mis provisions built into them, and there is no provision in the law that protects hospitality. As such, even the smallest gratuity could techni - cally be caught by the Act as a bribe. However, to constitute a bribe, it would still be necessary to show that such hospitality was intended to induce conduct that amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust. The Bribery Act was not intended to criminalise bona fide hospitality or promotional expenditure which is reasonable and proportionate. There is an expectation that promotional expenses are an important part of doing business if done in an appropriate way. However, the Joint Prosecu - tion Guidance for the Bribery Act 2010 states: “the more lavish the hospitality or expenditure (beyond what may be reasonable standards in the particular circumstances) the greater the inference that it is intended to encourage or reward improper performance or influence an official. Lavishness is just one factor that may be taken into account in determining whether an offence has been committed. The full circum - stances of each case would need to be con - sidered. Other factors might include that the hospitality or expenditure was not clearly con - nected with legitimate business activity or was concealed”. The Bribery Act guidance gives the follow - ing example: “an invitation to foreign clients to attend a Six Nations match at Twickenham as part of a public relations exercise designed to cement good relations or enhance knowledge
in the organisation’s field is extremely unlikely to engage section 1 as there is unlikely to be evidence of an intention to induce improper per - formance of a relevant function”. Unlike the US Foreign Corrupt Practices Act [FCPA], the Bribery Act also makes no allowance for facilitating or expediting payments (some - times called “grease” payments). The guidance to the FCPA describes facilitating payments as payments made to further routine governmental action that involves non-discretionary acts, such as processing visas, supplying utilities, provid - ing police protection, or providing mail services. Such facilitating payments may well be caught by the provisions of the Bribery Act if, as with hospitality payments, the requisite intention can be established. Bribery of Foreign Officials Section 6 – the offence of bribery of a foreign public official Section 6 of the Bribery Act provides for a dis - crete offence of bribery of foreign officials. A person who bribes a foreign public official is guilty of an offence if their intention is to influ - ence the official in their capacity as a foreign public official. The person must also intend to obtain or retain business or an advantage in the conduct of business. The person bribes a public official if: • the person, directly or through a third party, offers, promises, or gives any financial or other advantage to the official, or to another person at the official’s request or with the official’s assent or acquiescence; and • the public official is neither permitted nor required by the written law applicable to them
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