House of Lords portcullis
House of Lords
Session 2009 - 10
Internet Publications
Other Bills before Parliament

Bribery Bill [HL]


Bribery Bill [HL]

1

 

A

Bill

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

1       

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

5

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

10

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

15

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.

(5)   

In cases 1 and 2 it does not matter whether the advantage is offered, promised

20

or given by P directly or through a third party.

 

HL Bill 3                                                                                               

54/5

 
 

Bribery Bill [HL]

2

 

2       

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

advantage intending that, in consequence, a relevant function or activity

should be performed improperly (whether by R or another person).

5

(3)   

Case 4 is where—

(a)   

R requests, agrees to receive or accepts a financial or other advantage,

and

(b)   

the request, agreement or acceptance itself constitutes the improper

performance by R of a relevant function or activity.

10

(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.

(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

15

activity is performed improperly—

(a)   

by R, or

(b)   

by another person at R’s request or with R’s assent or acquiescence.

(6)   

In cases 3 to 6 it does not matter—

(a)   

whether R requests, agrees to receive or accepts (or is to request, agree

20

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.

(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.

25

(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.

3       

Function or activity to which bribe relates

(1)   

For the purposes of this Act a function or activity is a relevant function or

30

activity if—

(a)   

it falls within subsection (2), and

(b)   

meets one or more of conditions A to C.

(2)   

The following functions and activities fall within this subsection—

(a)   

any function of a public nature,

35

(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

corporate or unincorporate).

(3)   

Condition A is that a person performing the function or activity is expected to

40

perform it in good faith.

(4)   

Condition B is that a person performing the function or activity is expected to

perform it impartially.

 
 

Bribery Bill [HL]

3

 

(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—

(a)   

has no connection with the United Kingdom, and

(b)   

is performed in a country or territory outside the United Kingdom.

5

(7)   

In this section “business” includes trade or profession.

4       

Improper performance to which bribe relates

(1)   

For the purposes of this Act a relevant function or activity—

(a)   

is performed improperly if it is performed in breach of a relevant

expectation, and

10

(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.

(2)   

In subsection (1) “relevant expectation”—

(a)   

in relation to a function or activity which meets condition A or B, means

15

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

function or activity will be performed that arises from the position of

trust mentioned in that condition.

20

(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

performance of that function or activity.

5       

Expectation test

25

(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.

(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

30

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.

(3)   

In subsection (2) “written law” means law contained in—

(a)   

any written constitution, or provision made by or under legislation,

35

applicable to the country or territory concerned, or

(b)   

any judicial decision which is so applicable and is evidenced in

published written sources.

Bribery of foreign public officials

6       

Bribery of foreign public officials

40

(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.

 
 

Bribery Bill [HL]

4

 

(2)   

P must also intend to obtain or retain—

(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

5

financial or other advantage—

(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

10

be influenced in F’s capacity as a foreign public official by the offer,

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—

15

(a)   

any omission to exercise those functions, and

(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,

20

whether appointed or elected, of a country or territory outside the

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

25

(ii)   

for any public agency or public enterprise of that country or

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—

30

(a)   

countries or territories,

(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—

35

(a)   

where the performance of the functions of F which P intends to

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

40

organisation,

(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

45

legislation, applicable to the country or territory concerned, or

(ii)   

any judicial decision which is so applicable and is evidenced in

published written sources.

 
 

Bribery Bill [HL]

5

 

(8)   

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

Failure of commercial organisations to prevent bribery

7       

Failure of commercial organisations to prevent bribery

(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—

5

(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

designed to prevent persons associated with C from undertaking such

conduct.

10

(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

(b)   

would be guilty of such an offence if section 11(2)(c) and (4) were

omitted.

15

(4)   

See section 8 for the meaning of a person associated with C.

(5)   

In this section—

“partnership” means—

(a)   

a partnership within the Partnership Act 1890, or

(b)   

a limited partnership registered under the Limited Partnerships

20

Act 1907,

or a firm or entity of a similar character formed under the law of a

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

25

United Kingdom and which carries on a business (whether

there or elsewhere),

(b)   

any other body corporate (wherever incorporated) which

carries on a business, or part of a business, in any part of the

United Kingdom,

30

(c)   

a partnership which is formed under the law of any part of the

United Kingdom and which carries on a business (whether

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

35

Kingdom,

   

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

8       

Section 7: supplementary provision

(1)   

For the purposes of section 7, a person (“A”) is associated with C if

(disregarding any bribe under consideration) A is a person who performs

40

services for or on behalf of C.

(2)   

The capacity in which A performs services for or on behalf of C does not

matter.

 
 

Bribery Bill [HL]

6

 

(3)   

Accordingly A may (for example) be C’s employee, agent or subsidiary.

(4)   

Whether or not A is a person who performs services for or on behalf of C is to

be determined by reference to all the relevant circumstances and not merely by

reference to the nature of the relationship between A and C.

(5)   

But if A is an employee of C, it is to be presumed unless the contrary is shown

5

that A is a person who performs services for or on behalf of C.

Prosecution and penalties

9       

Consent to prosecution

(1)   

No proceedings for an offence under this Act may be instituted in England and

Wales except by or with the consent of—

10

(a)   

the Director of Public Prosecutions,

(b)   

the Director of the Serious Fraud Office, or

(c)   

the Director of Revenue and Customs Prosecutions.

(2)   

No proceedings for an offence under this Act may be instituted in Northern

Ireland except by or with the consent of—

15

(a)   

the Director of Public Prosecutions for Northern Ireland, or

(b)   

the Director of the Serious Fraud Office.

(3)   

The function of the Director of the Serious Fraud Office under subsection (1) or

(2) of giving consent may be exercised by a member of the Director’s staff who

is authorised by the Director.

20

(4)   

An authorisation under subsection (3)—

(a)   

may relate to a specified person or to persons of a specified description,

(b)   

may relate to specified circumstances.

(5)   

Subsections (3) and (4) do not affect other powers of a Director to authorise a

person to exercise functions under subsection (1) or (2).

25

10      

Penalties

(1)   

An individual guilty of an offence under section 1, 2 or 6 is liable—

(a)   

on summary conviction, to imprisonment for a term not exceeding 12

months, or to a fine not exceeding the statutory maximum, or to both,

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

30

10 years, or to a fine, or to both.

(2)   

Any other person guilty of an offence under section 1, 2 or 6 is liable—

(a)   

on summary conviction, to a fine not exceeding the statutory

maximum,

(b)   

on conviction on indictment, to a fine.

35

(3)   

A person guilty of an offence under section 7 is liable on conviction on

indictment to a fine.

(4)   

The reference in subsection (1)(a) to 12 months is to be read—

(a)   

in its application to England and Wales in relation to an offence

committed before the commencement of section 154(1) of the Criminal

40

Justice Act 2003, and

 
 

Bribery Bill [HL]

7

 

(b)   

in its application to Northern Ireland,

   

as a reference to 6 months.

Other provisions about offences

11      

Offences under this Act: territorial application

(1)   

An offence is committed under section 1, 2 or 6 in England and Wales, Scotland

5

or Northern Ireland if any act or omission which forms part of the offence takes

place in that part of the United Kingdom.

(2)   

Subsection (3) applies if—

(a)   

no act or omission which forms part of an offence under section 1, 2 or

6 takes place in the United Kingdom,

10

(b)   

a person’s acts or omissions done or made outside the United Kingdom

would form part of such an offence if done or made in the United

Kingdom, and

(c)   

that person has a close connection with the United Kingdom.

(3)   

In such a case—

15

(a)   

the acts or omissions form part of the offence referred to in subsection

(2)(a), and

(b)   

proceedings for the offence may be taken at any place in the United

Kingdom.

(4)   

For the purposes of subsection (2)(c) a person has a close connection with the

20

United Kingdom if, and only if, the person was one of the following at the time

the acts or omissions concerned were done or made—

(a)   

a British citizen,

(b)   

a British overseas territories citizen,

(c)   

a British National (Overseas),

25

(d)   

a British Overseas citizen,

(e)   

a person who under the British Nationality Act 1981 was a British

subject,

(f)   

a British protected person within the meaning of that Act,

(g)   

an individual ordinarily resident in the United Kingdom,

30

(h)   

a body incorporated under the law of any part of the United Kingdom,

(i)   

a Scottish partnership.

(5)   

An offence is committed under section 7 irrespective of whether the acts or

omissions which form part of the offence take place in the United Kingdom or

elsewhere.

35

(6)   

Where no act or omission which forms part of an offence under section 7 takes

place in the United Kingdom, proceedings for the offence may be taken at any

place in the United Kingdom.

(7)   

Subsection (8) applies if, by virtue of this section, proceedings for an offence are

to be taken in Scotland against a person.

40

(8)   

Such proceedings may be taken—

(a)   

in any sheriff court district in which the person is apprehended or in

custody, or

(b)   

in such sheriff court district as the Lord Advocate may determine.

 
 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2009
Revised 20 November 2009