Bribery Bill [HL]

House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Bribery Bill [HL]

Bribery Bill [HL]
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A
Bill
[AS AMENDED IN PUBLIC BILL COMMITTEE]
To
Make provision about offences relating to bribery; and for connected
purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
General bribery offences
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Offences of bribing another person
(1)
A person (“P”) is guilty of an offence if either of the following cases applies.
(2)
Case 1 is where—
(a)
P offers, promises or gives a financial or other advantage to another
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person, and
(b)
P intends the advantage—
(i)
to induce a person to perform improperly a relevant function or
activity, or
(ii)
to reward a person for the improper performance of such a
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function or activity.
(3)
Case 2 is where—
(a)
P offers, promises or gives a financial or other advantage to another
person, and
(b)
P knows or believes that the acceptance of the advantage would itself
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constitute the improper performance of a relevant function or activity.
(4)
In case 1 it does not matter whether the person to whom the advantage is
offered, promised or given is the same person as the person who is to perform,
or has performed, the function or activity concerned.

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(5)
In cases 1 and 2 it does not matter whether the advantage is offered, promised
or given by P directly or through a third party.
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Offences relating to being bribed
(1)
A person (“R”) is guilty of an offence if any of the following cases applies.
(2)
Case 3 is where R requests, agrees to receive or accepts a financial or other
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advantage intending that, in consequence, a relevant function or activity
should be performed improperly (whether by R or another person).
(3)
Case 4 is where—
(a)
R requests, agrees to receive or accepts a financial or other advantage,
and
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(b)
the request, agreement or acceptance itself constitutes the improper
performance by R of a relevant function or activity.
(4)
Case 5 is where R requests, agrees to receive or accepts a financial or other
advantage as a reward for the improper performance (whether by R or another
person) of a relevant function or activity.
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(5)
Case 6 is where, in anticipation of or in consequence of R requesting, agreeing
to receive or accepting a financial or other advantage, a relevant function or
activity is performed improperly—
(a)
by R, or
(b)
by another person at R’s request or with R’s assent or acquiescence.
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(6)
In cases 3 to 6 it does not matter—
(a)
whether R requests, agrees to receive or accepts (or is to request, agree
to receive or accept) the advantage directly or through a third party,
(b)
whether the advantage is (or is to be) for the benefit of R or another
person.
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(7)
In cases 4 to 6 it does not matter whether R knows or believes that the
performance of the function or activity is improper.
(8)
In case 6, where a person other than R is performing the function or activity, it
also does not matter whether that person knows or believes that the
performance of the function or activity is improper.
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3
Function or activity to which bribe relates
(1)
For the purposes of this Act a function or activity is a relevant function or
activity if—
(a)
it falls within subsection (2), and
(b)
meets one or more of conditions A to C.
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(2)
The following functions and activities fall within this subsection—
(a)
any function of a public nature,
(b)
any activity connected with a business,
(c)
any activity performed in the course of a person’s employment,
(d)
any activity performed by or on behalf of a body of persons (whether
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corporate or unincorporate).
(3)
Condition A is that a person performing the function or activity is expected to
perform it in good faith.

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(4)
Condition B is that a person performing the function or activity is expected to
perform it impartially.
(5)
Condition C is that a person performing the function or activity is in a position
of trust by virtue of performing it.
(6)
A function or activity is a relevant function or activity even if it—
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(a)
has no connection with the United Kingdom, and
(b)
is performed in a country or territory outside the United Kingdom.
(7)
In this section “business” includes trade or profession.
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Improper performance to which bribe relates
(1)
For the purposes of this Act a relevant function or activity—
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(a)
is performed improperly if it is performed in breach of a relevant
expectation, and
(b)
is to be treated as being performed improperly if there is a failure to
perform the function or activity and that failure is itself a breach of a
relevant expectation.
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(2)
In subsection (1) “relevant expectation”—
(a)
in relation to a function or activity which meets condition A or B, means
the expectation mentioned in the condition concerned, and
(b)
in relation to a function or activity which meets condition C, means any
expectation as to the manner in which, or the reasons for which, the
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function or activity will be performed that arises from the position of
trust mentioned in that condition.
(3)
Anything that a person does (or omits to do) arising from or in connection with
that person’s past performance of a relevant function or activity is to be treated
for the purposes of this Act as being done (or omitted) by that person in the
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performance of that function or activity.
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Expectation test
(1)
For the purposes of sections 3 and 4, the test of what is expected is a test of what
a reasonable person in the United Kingdom would expect in relation to the
performance of the type of function or activity concerned.
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(2)
In deciding what such a person would expect in relation to the performance of
a function or activity where the performance is not subject to the law of any
part of the United Kingdom, any local custom or practice is to be disregarded
unless it is permitted or required by the written law applicable to the country
or territory concerned.
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(3)
In subsection (2) “written law” means law contained in—
(a)
any written constitution, or provision made by or under legislation,
applicable to the country or territory concerned, or
(b)
any judicial decision which is so applicable and is evidenced in
published written sources.
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Bribery of foreign public officials
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Bribery of foreign public officials
(1)
A person (“P”) who bribes a foreign public official (“F”) is guilty of an offence
if P’s intention is to influence F in F’s capacity as a foreign public official.
(2)
P must also intend to obtain or retain—
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(a)
business, or
(b)
an advantage in the conduct of business.
(3)
P bribes F if, and only if—
(a)
directly or through a third party, P offers, promises or gives any
financial or other advantage—
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(i)
to F, or
(ii)
to another person at F’s request or with F’s assent or
acquiescence, and
(b)
F is neither permitted nor required by the written law applicable to F to
be influenced in F’s capacity as a foreign public official by the offer,
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promise or gift.
(4)
References in this section to influencing F in F’s capacity as a foreign public
official mean influencing F in the performance of F’s functions as such an
official, which includes—
(a)
any omission to exercise those functions, and
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(b)
any use of F’s position as such an official, even if not within F’s
authority.
(5)
“Foreign public official” means an individual who—
(a)
holds a legislative, administrative or judicial position of any kind,
whether appointed or elected, of a country or territory outside the
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United Kingdom (or any subdivision of such a country or territory),
(b)
exercises a public function—
(i)
for or on behalf of a country or territory outside the United
Kingdom (or any subdivision of such a country or territory), or
(ii)
for any public agency or public enterprise of that country or
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territory (or subdivision), or
(c)
is an official or agent of a public international organisation.
(6)
“Public international organisation” means an organisation whose members are
any of the following—
(a)
countries or territories,
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(b)
governments of countries or territories,
(c)
other public international organisations,
(d)
a mixture of any of the above.
(7)
For the purposes of subsection (3)(b), the written law applicable to F is—
(a)
where the performance of the functions of F which P intends to
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influence would be subject to the law of any part of the United
Kingdom, the law of that part of the United Kingdom,
(b)
where paragraph (a) does not apply and F is an official or agent of a
public international organisation, the applicable written rules of that
organisation,
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(c)
where paragraphs (a) and (b) do not apply, the law of the country or
territory in relation to which F is a foreign public official so far as that
law is contained in—
(i)
any written constitution, or provision made by or under
legislation, applicable to the country or territory concerned, or
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(ii)
any judicial decision which is so applicable and is evidenced in
published written sources.
(8)
For the purposes of this section, a trade or profession is a business.
Failure of commercial organisations to prevent bribery
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Failure of commercial organisations to prevent bribery
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(1)
A relevant commercial organisation (“C”) is guilty of an offence under this
section if a person (“A”) associated with C bribes another person intending—
(a)
to obtain or retain business for C, or
(b)
to obtain or retain an advantage in the conduct of business for C.
(2)
But it is a defence for C to prove that C had in place adequate procedures
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designed to prevent persons associated with C from undertaking such
conduct.
(3)
For the purposes of this section, A bribes another person if, and only if, A—
(a)
is, or would be, guilty of an offence under section 1 or 6 (whether or not
A has been prosecuted for such an offence), or
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(b)
would be guilty of such an offence if section 12(2)(c) and (4) were
omitted.
(4)
See section 8 for the meaning of a person associated with C and see section 9
for a duty on the Secretary of State to publish guidance.
(5)
In this section—
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“partnership” means—
(a)
a partnership within the Partnership Act 1890, or
(b)
a limited partnership registered under the Limited Partnerships
Act 1907,
or a firm or entity of a similar character formed under the law of a
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country or territory outside the United Kingdom,
“relevant commercial organisation” means—
(a)
a body which is incorporated under the law of any part of the
United Kingdom and which carries on a business (whether
there or elsewhere),
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(b)
any other body corporate (wherever incorporated) which
carries on a business, or part of a business, in any part of the
United Kingdom,
(c)
a partnership which is formed under the law of any part of the
United Kingdom and which carries on a business (whether
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there or elsewhere), or
(d)
any other partnership (wherever formed) which carries on a
business, or part of a business, in any part of the United
Kingdom,

and, for the purposes of this section, a trade or profession is a business.
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