Published on : 10 Jul 2015
UKBA vs Bribery and Corruption
According to ex-UK Secretary of State for Justice Kenneth Clarke, “Bribery blights lives… The wider victims are government and society, undermined by a weakened rule of law and damaged social and economic development. At stake is the principle of free and fair competition, which stands diminished by each bribe offered or accepted”.
Obviously he is right in asserting that bribery is an act which projects negative implications throughout the fields of economy, law and ethics. Yet the scope bribery as an act is exceptionally wide, and the definition ambiguous and transnationally variable, thus making sufficiently extensive and internationally-applicable legislation difficult to implement. Consider the following:
- A 17-year-old offering a driving examiner money in exchange for a driving test pass certificate;
- An employee offering his employer a classic car in exchange for a promotion;
- A company circumventing a bidding process by offering off-record funds; and
- A defendant offering money to a judge in exchange for a lenient sentence.
Although the degree of seriousness varies, the above examples all constitute bribery in the traditional legal sense, namely “the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other people in charge of a public or legal duty1”.
When creating the above examples my first thought was to start with a far more basic, simple illustration – specifically, a teenager offering his sibling a share of his weekly allowance in return for not telling his parents that his brother had missed curfew. However, such an example would have been outside the remit of the aforementioned definition of bribery on account of the fact that the sibling is not “in charge of a public or legal duty”. Yet it is of note that Black’s Legal Dictionary is a source of reference from the USA – and although the USA is national jurisdiction which, further to the implementation of the Foreign Corrupt Practices Act (FCPA) in 1977, was considered as a global authority in anti-bribery legislation, it is now acknowledged that bribery as an offence is not confined to dealings with public officials exclusively. The fact that individuals (natural and juridical persons) are equally as culpable in involvement in bribery as commercial organizations and foreign public officials are is therefore paid due consideration in more recent legislation, and particularly in the UK Bribery Act 2010 (UKBA).
Effective as of July 2011, the UKBA is now considered by many as being the most rigorous anti-corruption legislation in the world, superseding the FCPA and its various contemporaries. Unlike most pieces of legislation in force in the UK, the UKBA is applicable across all three jurisdictions therein, namely Scotland, Northern Ireland and England/ Wales. However, it additionally has such international trans-jurisdictional enforceability that those charged with acts criminalized thereunder may be prosecuted by the specified authorities no matter where in the world the crime was actually committed, so long as they are connected to the UK in any manner outlined by UKBA Section 12
As previously discussed, the UKBA has extensive scope not only in terms of jurisdiction but also by way of the variety of offenses incorporated. Whereas the FCPA focusses primarily on the bribery of foreign officials, the UKBA establishes the far more basic offenses of 1) bribery and 2) accepting a bribe. Pursuant to Section 1, the straightforward premise is that a person shall be guilty of an offence if he offers a financial (or alternative) advantage to another with the intention of inducing or rewarding him for improperly performing a relevant function or activity, with the offence of receiving a bribe defined at Section 2 as being the receiving or requesting of the same. Under Section 3, a “relevant function or activity” may be:
(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; or
(d) Any activity performed by or on behalf of a body of persons (whether corporate or unincorporated),
if the person performing the function or activity is expected to perform it in good faith; the person performing the function or activity is expected to perform it impartially; and/or the person performing the function or activity is in a position of trust by virtue of performing it.
It seems reasonable to assert, then, that although the act of the aforementioned mischievous teenager looking to pay for his brother’s silence does not fall within the remit of the UKBA, the “ordinary man” is far more likely to run afoul of these provisions than those contained within the FCPA. Yet in addition to introducing every-day bribery offenses, the UKPA has preserved the principal function of the FCPA by also considering the bribery of a public foreign official. In simple terms and pursuant to Section 6(5), a “public foreign official” may be defined as a person holding a legislative, administrative or judicial position of any kind, (either appointed or elected), in a country or territory outside of the UK, or acting as an official or agent of a public international organization. Of course, such a definition is plagued with ambiguity, with “administrative position” in particular having an unidentifiable large scope. What would happen, then, if there is irrefutable evidence to suggest that a person has committed an offense in bribing or attempting to bribe a public foreign official, where the “public foreign official’s” role may be defined in such a way that it falls outside the remit of section 6(5)? Fortunately, the Act pays due consideration to this potential scenario, and would allow for prosecution under Section 1 PROVIDED THAT the element of “improper performance” by the official can be demonstrated.
The three provisions discussed thus far create the impression that the perpetrators of bribery offenses are rogue individuals acting of their own volition. Although it does not go so far as to introduce a separate provision under which a commercial entity may be prosecuted for actively pursuing acts of corruption, the Bribery Act does create criminal liability for entities failing to implement measures to prevent bribery amongst its members. Under Section 7, a commercial organization may be found guilty of such an offense if an associated person bribes a third party with the intention of procuring or retaining business or advantage for the said organization. Pursuant to Section 8(3), an “associated person” may be an employee, subsidiary or agent of the commercial entity in question, although Section 8(1) provides that such definitions are without limitation, and any person performing services for the entity in any respect may be considered as “associated”. In order for the entity to be prosecuted, there must be sufficient evidence to suggest that the associated person would themselves be convicted under Section 1 (bribing) or Section 6 (bribing a public foreign official), however there is no requirement necessitating that the associated person must be subject to prosecution or readily-convicted in order for the entity to become liable to proceedings. That said, the two different parties to the instance of bribery (namely the associated person and the entity) may each be prosecuted simultaneously – the associated person for the bribery, and the entity for failing to prevent it. Moreover, if there is evidence to suggest that a person representing the corporate ‘directing mind’ bribes/encourages or assists someone in giving or receiving a bribe, then the company may also be charged with a Section 1 or Section 6 offense in addition to that provided under Section 7. It is also worth noting that Section 7 does not require the associated person to have any connection to the UK whatsoever (as per Section 7(3)(b)) – the entity will still be liable so long as it was incorporated in the UK or carries out any of its business therein. It, therefore, seems reasonable to assert that the UKBA has placed commercial organizations under a tremendous amount of pressure to implement stringent procedures to control corruption.
Generally speaking, a person suspected of an offence within a UK jurisdiction will be investigated by the relevant police force and, further to permission from the relevant charging authority (usually either the CPS or the police via an Evidential Review Officer), will be charged and committed to the criminal court under the prosecuting authority of the Crown Prosecution Service (CPS). For those suspected of offenses under the UKBA, however, the process is somewhat more complex. In the first instance, the allocation of investigative responsibility will be dependent on the location in which the offense was committed. As we have discussed, an offence occurring overseas may be prosecuted under the UKBA, so long as the perpetrator is connected to the UK in any manner prescribed by Section 12 – however the responsibility for investigating such an offence will fall upon the Serious Fraud Office (SFO), as opposed to any UK police force (although the police may assist). If the SFO has investigated a case and permission to prosecute is awarded pursuant to the foregoing, then it shall also be responsible for prosecuting the same – in other words, a matter will not be referred to the CPS. Accordingly, the CPS shall prosecute any matters investigated by the police, whether within the UK or overseas. Yet it is a distinguishing feature of the UKBA that, as per Section 10, the initiation of proceedings thereunder requires the personal express consent of the respective authority (namely the Director of Public Prosecutions (DPP) for offenses prosecuted by the CPS or the Director of the SFO)2 . This differs greatly from the prosecution of the very vast majority of offenses under UK law, whereby consent may be delegated to a Crown Prosecutor. Each case is therefore afforded a significant amount of individual attention, and the various considerations of UK prosecutions (such as the sufficiency of the evidence and whether the prosecution of the matter at hand is in the interests of the general public) are considered fully.
As “either-way” offenses, individuals charged pursuant to Sections 1, 2 and/or 6 may be dealt with in either the Magistrates’ or the Crown Courts, with the range of penalties varying accordingly. It is of note that the UKBA is one of the very few statues enforceable in England/Wales which specifically provides for a 12 month custodial sentence for an either-way offence on summary conviction, with the majority of criminal laws capping summary sentence at 6 months (despite the 12 month allowance prescribed by the Criminal Justice Act 2003). On indictment, a custodial sentence may extend as far as 10 years, subject to the discretion of the presiding judge and in keeping with Sentencing Guidelines. Individuals are also liable to fines, with the mode of trial/venue of sentence determining the upper limit. Of course, companies, commercial organizations and other entities convicted of such offenses may not be sentenced to terms of imprisonment, therefore fines are the only available option in the event that the convicted party is anything but an individual. Likewise, commercial organizations convicted under Section 7 are liable to a fine, BUT such matters are indictable only and are therefore reserved to the Crown Court exclusively. Notwithstanding the imposition of any financial penalty upon an individual, commercial entity or organization, the proceeds of any alleged incident of bribery may additionally be subject to confiscation and eventual forfeiture under the Proceeds of Crime Act 2002.
It is undeniable that the UKBA is an internal triumph when considering the UK’s own jurisdictions, as it supersedes dated and inadequate statutes whilst leaving the common law offense of bribery in force. In doing this it provides an instrument via which significant offenses of bribery – particularly those committed at the expense of corporate, commercial or public justice – may be given due weight (it is of note that the first person prosecuted under the UKBA was a Magistrates’ Court clerk). But what of its international effects? Although acknowledged as a rigorous and thorough law, the UKBA’s reputation is not necessarily advantageous. The absence of the element of “dishonesty” in any UKBA offense, for example, has the effect that acts which are acceptable elsewhere in the world become criminalized thereunder. It has been argued that this places the UK at a competitive disadvantage, as it acts as a deterrent to investors who would have to alter their otherwise-acceptable practices in order to avoid criminal liability.
Yet returning to the words of Mr. Clarke, any investor will surely acknowledge that bribery is an offense which causes repercussions on a global scale, with individuals, companies, and societies as eventual victims. Despite the fact that various practices may need amending to ensure compliance, it is undoubtedly the case that tough legislation such as the UKBA is, overall, in the best interests of all parties.
Unless you are a “Crown body” of course. In which case, you’re exempt…