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In 2010, Parliament criminalised the paying or receiving of bribes. Those offences are widely drafted and, although they are aimed at businesses, they could catch people who would not think of themselves as being involved in a business. For example, where a parent agrees to make a donation to a school on the understanding that the person responsible for admissions will bypass the admission system and allow the parent’s child to enter the school then the parent and person receiving the bribe will both commit offences. In practice though, most bribery situations will arise in the course of business and, frequently, when dealing with foreign public officials in countries where a bribe may be expected in the normal course of business.
Paying A Bribe
You will commit an offence where you promise or give money or some other advantage to another person with the intention that they will perform their function improperly or as a reward for improper performance, this is called a case 1 bribe. You will also commit an offence where you believe that the acceptance of your promise or gift would itself constitute improper performance of the other person’s function, which is called a case 2 bribe.
By “function”, we mean a function that is of a public nature, any activity connected with a business, an activity performed in the course of a person’s employment, or an activity performed on behalf of a group of people whether that group is incorporated or not. There must also be an expectation that the function will be performed in good faith, impartially and that the person performing the function is in a position of trust.
It does not matter whether you personally make the offer or whether it is made through a third party. In respect of a case 1 bribe, it does not matter whether the person you pay is the same person who is, or has, performed the function concerned. Thus, an offence would be committed if you paid a company director who then instructed the procurement manager to buy from your company.
Receiving A Bribe
The person receiving a bribe also commits an offence where they request, agrees to receive or accepts financial payment or other advantage in return for improper performance of their function.
For example, if a music promotor wants a prominent radio DJ, who hosts a programme showcasing up and coming talent, to play their artists song on DJ’s show, the DJ may commit an offence if she agrees to play the song in return for payment from the promotor.
Paying a bribe abroad will only be an offence under English law where the bribe is paid to a foreign public official with the intention of obtaining or retaining business or an advantage in the conduct of business. Thus, paying a policeman to turn a blind eye to a speeding offence will not be an offence under the Bribery Act 2010 (although you should assume it will be a serious offence locally) but paying off a policeman to avoid a fine for, say, an environmental offence committed by your business will be an offence under the Bribery Act 2010 as your business will gain the business advantage of not being fined.
You do not have to make a payment to commit a crime – the offence will be complete once you promise to give the foreign official money or some other advantage. The offence will also be committed where you are paying the foreign official to use his position to influence someone else even if the ultimate decision you intend to bring about is not within the paid official’s authority.
You will have a defence if you can show that the written local law either permits or requires the official to be influenced in the execution of his functions by a promise or a gift.
Failure Of Business To Prevent Bribery
A commercial organisation commits an offence if a bribe is promised or paid by a person associated with the organisation who is seeking to obtain or retain business or an advantage for the organisation. To prove the offence, the prosecution must also prove that the person making the promise would have been guilty of an offence of bribery or bribing a foreign official, although there is no requirement for that person to have been convicted.
The commercial organisation will have a defence if it can show that it has adequate procedures in place that are designed to prevent people associated with it from bribing others.
A commercial organisation includes both limited companies and partnerships that carry on business in the UK.
A person convicted of bribery can be sentenced to up to ten-years imprisonment.
A business convicted can only be fined; however, the sentencing guidelines say, “the fine must be substantial enough to have a real economic impact” on the business. The court should also consider compensation and costs. The aim of sentencing a business is to remove all gains made from the bribe, add additional punishment and deter future offences by others. In 2016, Sweett Group PLC was fined £1.4 million and they were ordered to pay an additional £850,000 to reflect the gain they made from the bribery. With the addition of the Serious Fraud Office’s costs, Sweett’s total costs due to the case against them was £2.25M.
Confiscation And Forfeiture Orders
An individual or business convicted of a bribery offence may be subject to a confiscation or forfeiture order in addition to the sentence they receive from the court.
A confiscation order requires you to pay back any proceeds from your crime but does not specify how you do so. They have two parts, the benefit figure and the available amount. The benefit figure is the amount the prosecutor says you have benefited from committing the crime while the available amount is the amount of assets at your disposal to pay any order. The benefit figure frequently exceeds the available funds meaning that the court will order you to pay back only the amount available; however, once the benefit figure is declared the prosecutor can come back in future to ask the court to order you to pay back more money should you come into funds any time in the future. So, let’s say the benefit figure is £1M and your home is worth £250,000 but you have no other assets. The court may order you to pay £250,000 by selling your house. Ten years later, you win the lottery, get a great job or are lucky in business and now have another £500,000 in assets. The prosecutor could go back to the court and ask them to make you pay that £500,000 as well.
A solicitor can help you reduce the benefit figure as much as possible, which will limit what the prosecutor can come after you for in future. We can also help you reduce the available amount figure to limit what you have to pay right away.
Forfeiture orders deprives you of the legal title to specific property. So, let’s say you were given a new car in payment for some improper action. The court could make a forfeiture order meaning you would no longer own the car and the authorities could lawfully take it from you.
Dealing with either is a lengthy and complicated process. A solicitor can help you reduce your liability and limit the amount you are required to pay. Call us now to discuss your case.
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