Described as "the toughest anti-corruption legislation in the world",concerns have been raised that the Act's provisions criminalise behaviour that is acceptable in the global market, and puts British business at a competitive disadvantage.
The act creates three main offences:
- bribing a person to induce or reward them to perform a relevant function
- improperly requesting, accepting or receiving a bribe as a reward for performing a relevant function
- improperly using a bribe to influence a foreign official to gain a business advantage.
A 'relevant function' can be an activity associated with the private or public sector provided that the function should be carried out in either good faith, impartially or that the person performing it is in a position of trust.
Commercial organisations can also commit an offence if they, or an associate, commits bribery on their behalf to gain or retain a business advantage.
However, it is a defence, in this case, for the organisation to have in place adequate procedures to prevent bribery.
Where an offence of bribing another person, including a foreign official, or being bribed, has been committed by an organisation with the consent or connivance of a senior officer (a director, manager, secretary or other similar officer of the body corporate or a partner in a Scottish partnership) of that organisation then that senior officer can also be held liable and proceedings can be taken against them.
A relevant function is:
- any function of a public nature any activity connected with a business, trade or profession
- any activity carried out in the course of employment any activity carried out on behalf of a body of persons (corporate or unincorporated),
and is performed with one or more of the following relevant expectations:
- it will be performed in good faith,
- it will be performed with impartiality
- that by virtue of performing the activity the person doing so is in a position of trust.
The function does not have to be connected to the UK or be performed in the UK for it to be relevant.
The test for whether the relevant expectations listed above apply to an activity or function would be whether a reasonable person in the UK would expect it to apply in relation to that type of function or activity.
If it occurred outside the UK, the same test would apply and local custom and practice would be disregarded; however, local law would be considered.
Needless to say any business person needs to be fully aware of their obligations under this act. Businesses (and Senior Officers) need to protect themselves with adequate procedures. We can give you the advice you require.