ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
to be influenced in their capacity as a foreign public official by the offer, promise or gift. The meaning of foreign public official A “foreign public official” is an individual who satisfies at least one of the following conditions. • Holds a legislative, administrative, or judicial position of any kind outside the UK. • Exercises a public function for or on behalf of a country outside the UK, or for any public agency or public enterprise of that country. • Is an official or agent of a public international organisation. As such, employees of state-controlled com - panies can fall within the definition of a for - eign public official. This is significant, as many recent international corporate corruption cases have involved the bribery of individuals in fully or partially state-controlled companies (see, for example, the recent prosecution of Glencore Plc that involved, inter alia, the bribing of individuals in the Nigerian National Petroleum Company). Failure to Prevent Bribery Section 7 – the corporate offence of failure to prevent bribery Perhaps the most groundbreaking aspect of the Bribery Act 2010 was the creation of a specific corporate offence of failure to prevent bribery. A “relevant commercial organisation” is guilty of an offence if a person associated with it bribes another person intending to obtain or retain business for the commercial organisation or to obtain or retain an advantage in the conduct of business for the commercial organisation. The bribe itself is defined as something that would be an offence under Section 1 or 6 (see above) and it does not matter whether the per -
son associated with the commercial organisa - tion had been prosecuted for that offence or not. It is a defence for the commercial organisation to show that it had in place adequate procedures designed to prevent persons associated with the commercial organisation from undertaking such conduct. The Secretary of State has issued guidance as to what constitutes “adequate pro - cedures” (see above). A “relevant commercial organisation” for the pur - poses of this offence must satisfy at least one of the following conditions: • It is a body incorporated or a partnership formed under UK law and which carries on a business (whether in the UK or elsewhere). • It is any other body corporate (wherever incorporated) or partnership (wherever formed) which carries on a business, or part of a business, in any part of the UK. This “failure to prevent” model of corporate lia - bility has since been replicated in other parts of criminal law (see above). Jurisdiction Section 12 of the Bribery Act sets out the very broad extra-territorial reach of the offences under Sections 1, 2, 6 and 7. Offences of bribery, being bribed and bribery of a public official can be prosecuted in the UK even if no act or omission that forms part of an offence under Section 1, 2 or 6 takes place in the UK. This can happen if the act or omission would have formed part of the offence had it been done or made in the UK and the person had a “close connection” with the UK. A person has a close connection with the UK if, at the time of the acts or omissions, they satisfied at least
141 CHAMBERS.COM
Powered by FlippingBook