Civil Engineering Reference
In-Depth Information
A person who bribes a foreign official is guilty of an offence if it is the person's
intention to influence the public official in their capacity as a foreign public official.
The person must intend to obtain or retain business or a business advantage. The
Bribery Act provides that the financial or other advantage can benefit the foreign
official or someone else at the official's request or permission and can be made directly
between the parties or through a third party.
As before, if the foreign official is permitted by the written law of the territory in
which the offence occurs to accept a 'bribe', then no offence is committed for the
purposes of the Bribery Act.
A foreign public official is defined in s.6(4), as an individual holding a legislative,
administrative or judicial post outside of the UK, or anyone carrying out a public
function for a foreign country or for a public agency or enterprise outside the
UK, and also includes an official or agent of a public international organization.
Therefore, offences under s.6 can be committed anywhere in the world outside of
the UK.
Under s.6 there is no requirement for the foreign public official to act improperly
in the exercise of their function; it only requires that the person bribing the foreign
official intends that they receive a business advantage or retain business. Some com-
mentators have suggested that s.6 'was enacted to overcome perceived difficulties over
proofoftheexactscopeandnatureofthefunctionsofforeignpublicoicialsthat
might prove an obstacle to conviction if intent to induce improper performance of
that function under s.1 was required to be proved' (
The Bribery Act 2010: The Next
Chapter
(2011) 6 JIBFL 340).
In this section the Bribery Act goes further than provided for under the OECD
Convention. he OECD Convention provides that legislation should prohibit bribery
of foreign officials where the bribe is given 'in order that the official act or refrain from
acting in relation to the performance of official duties'. The UK legislation, in only
requiring that the person offering the bribe intends to receive a business advantage,
providesforalowerevidentialburden,whileclearlyalsosettingtheBriberyActwithin
the bounds of the OECD Convention's aims.
22.2.8 Failure of commercial organizations to prevent bribery: he corporate
offence.
Unders.7oftheBriberyActa'relevantcommercialorganisation'isguiltyofanofence
under that section if a person associated with the organization bribes another person
intending to obtain or retain business and/or an advantage in the conduct of business
for the organization. This is a strict liability offence.
A 'relevant commercial organisation' is defined in s.7(5) as a body or partnership
incorporated or formed in the UK irrespective of where it carries on a business, or an
incorporated body or partnership which carries on a business or part of a business in
the UK irrespective of the place of incorporation or formation.
22.2.9 Associated person
Under s.8, a person associated with a commercial organization is a person who per-
formsservicesfororonbehalfoftheorganization.hecapacityinwhichaperson
