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Eoin O'Shea explains the new UK Bribery Act 2010 in detail and provides practical guidance on critical issues for businesses
The Bribery Act is among the most controversial pieces of legislation of recent years. It creates a comprehensive scheme of bribery offences that will revolutionise courts' and prosecutors' responses to bribery at home or abroad. It will also force big changes to how businesses deal with bribery.
The Bribery Act 2010: A Practical Guide provides the most detailed and up-to-date analysis of this important new legislation. It deals with the law in context, covering the general bribery offences, bribery of foreign public officials and the specific bribery offence applicable to businesses alone.
The book deals with the latest government and prosecution guidance in depth, and separately considers particularly controversial topics such as facilitation payments and corporate hospitality. Related offences and civil liability for bribery are also covered. The text provides practical guidance on compliance procedures in line with the new Act and explains the impact of the new legislation using examples and worked scenarios.
FULL CONTENT DETAILS
Introduction and Historical Background
Introduction, The radicalism of the Bribery Act, Why now?,The case for fighting transnational bribery, Are there counter-arguments?, The existing criminal law of bribery and corruption, Common law bribery, The statutory offences, The Public Bodies Corrupt Practices Act 1889, Public body, ‘Corruptly’, The Prevention of Corruption Act 1906, The Prevention of Corruption Act 1916, Anti-terrorism, Crime and Security Act 2001 ,Recent developments ,Previous attempts at reform ,Conclusion ,‘Bribery’ or ‘corruption’?, Interpreting a new Act of Parliament
General Offences: Active Bribery
Bribery Act 2010: section 1, Introduction, Threshold conditions, Actus reus and mens rea, Case 1: inducing or rewarding improper performance, Offer, promise or give, Financial or other advantage, To another person, Intending to induce improper performance, Intention, Intention and improper performance, ‘Induce’, Relevant function or activity, Intending to reward improper performance, Example, Case 2: compromise of position, Knows or believes, Acceptance itself improper, Examples, Indirectness and third parties, Offences by bodies corporate and their senior officers (section 14), The innocent abroad?
General Offences: Passive Bribery
Bribery Act 2010: section 2, Introduction, Case 3, ‘Requests, agrees to receive or accepts’, Example, Financial or other advantage, Intending that relevant function or activity is performed improperly in consequence, In consequence, Example, Offence complete without actual improper performance, Lack of intention as to improper performance, Case 4, Case 5, As a reward, For improper performance, Example, Case 6, In anticipation of or in consequence of Position of person, performing function or activity at R’s request, Example
Relevant Functions and Activities
Bribery Act 2010: section 3, Introduction, Summary of section 3 threshold condition, Two-stage definition, Public sector and private sector, Functions of a public nature, Existing English law, Core and hybrid public authorities, Relevance of section 6 ‘public function’, Members of Parliament, Activities connected with a business, Activities performed in the course of a person’s employment, Activities performed by or on behalf of a body of persons, Example, Expectations applicable to the function or activity, Condition A: expectation of good faith, Example, Condition B: expectation of impartiality, Example, Condition C: position of trust, Examples, Fuzziness at the margins?, Another example, Can civil law be ignored?, Connections to the UK
Bribery Act 2010: section 4, Introduction, Relevant function or activity, Breach of relevant expectations, Breach of expectation of good faith, Example, Breach of expectation of impartiality
Example, Breach of expectation arising from position of trust, Examples Connections to past protected functions, Examples, What is a reasonable person?
The Expectation Test
Bribery Act 2010: section 5, Introduction, An objective test, Two questions for the reasonable person, What is a ‘reasonable person’?, Breach of expectations, Examples, Performance of functions outside the UK, Local law informs expectations of reasonable person, Local customs
Bribery of Foreign Public Officials
Bribery Act 2010: section 6, Introduction, Compliance with the OECD Convention, Scheme of section 6, Actus reus and mens rea, Role of the OECD Convention in interpreting section 6, Article 1 of the OECD Convention, Definition of ‘foreign public official’, Institutional definition, A legislative, administrative or judicial position, Support staff, Political candidates and officials of political parties, Territory outside the UK, Functional definition, Exercising public function for a foreign country, Public agency, Public enterprise, Example, Sovereign wealth funds, Officials of public international organisations, Intention to influence F in official capacity, Advantage need not be for ‘improper performance’, The same mens rea as section 1? Hospitality and promotional expenses, Private relationships with FPOs, Omissions and actions exceeding authority, Intending to obtain or retain business/an advantage in the conduct of business, Providing the advantage, Directly or through a third party, Offers promises or gives, Any financial or other advantage, To F or another at F’s request, etc, Role of local law, Example, Applicable law, ‘Facilitation’ payments to foreign public officials, Section 14 and offences under section 6 by bodies corporate and their senior officers, Comparison of Article 1 of the OECD Convention with section 6 of the Bribery Act 2010
Failure of Commercial Organisations to Prevent Bribery
Bribery Act 2010: section 7, Bribery Act 2010: section 8, Introduction, Liability of corporate bodies, Corporate criminal liability and mens rea, Corporate liability under section 7, Status of section 7 offence, Expanded jurisdiction, Corporate liability for other Bribery Act offences, Key issues, ‘C’: a relevant commercial organisation, UK corporations and partnerships, Non-UK corporations and partnerships, Carrying on a business, Part of a business, Stock exchange listing, UK subsidiary of foreign company, The corporate veil, Must the UK subsidiary have a hand in the bribery?, ‘A’: a person associated with C (section 8), What is an associated person? Performing services for or on behalf of C, What does section 8(4) add?, Categories of associated person, A ‘bribery only’ relationship?, Shareholders, Employees, directors, partners, Agents, Suppliers, Contractors and subcontractors, Subsidiaries, Joint ventures, Example, Joint venture not incorporated, Other considerations, Bribery by A to obtain/retain business or business advantage for C, Section 1 offence by A, Section 6 offence by A, Additional mens rea required by section 7(1), No need for A to be prosecuted, No need for A to have UK connection, The defence of adequate procedures, Burden of proof of adequate procedures is on C, Object is prevention of bribery by associated persons Procedures must be ‘adequate’
Defence of Adequate Procedures, Defence Under Section 13, Defences of Duress and Necessity
Introduction, Adequate procedures, Bribery Act 2010: section 9, Meaning of ‘adequate’, The status of the Ministry of Justice Guidance, The guidance document, Quick Start Guide, ‘Government policy’ on interpretation of the Act, Six principles for prevention of bribery by associated persons, Principle 1: proportionate procedures. Sub-principles and specific topics, Proportionality, Clear, practical and accessible. List of topics, Gifts/hospitality, Facilitation payments, Recruitment/employment, Financial controls, Speak up procedures, Investigations and conflicts of interest, Principle 2: top level commitment, Principle 3: risk assessment, Methodology, Incentives, Regulatory environment, How much information is enough?, Principle 4: due diligence, Varying due diligence according to incorporation?, Red flags, Principle 5: communication (including training), Principle 6: monitoring and review, Recording the procedures at work, Outline ABC policy, Defence for military and security service personnel –section 13, Bribery Act 2010: section 13, Relevant bribery offence, Armed forces and intelligence services, Proper exercise of any function, Police and informants, Defences of duress and necessity, Duress, Necessity, Outline ABC policy
Consent to Prosecution, Enforcement Priorities and Penalties
Bribery Act 2010: sections 10 and 11, Introduction, Role of the Attorney-General and directors of prosecuting agencies, (section 10), Prosecutors’ priorities, Prosecution of individuals, 2011 Joint Prosecution Guidance, Giving assistance to prosecutors, Corporate prosecutions, Attorney-General’s Guidance Serious Fraud Office policy Effect of Innospec on SFO policy 2011 Joint Prosecution Guidance Section 11: penalties Mode of trial, Sentencing, Maximum sentences provided in the Act, Ranges of sentence: individuals, Suspended sentences?, Range of sentences: companies, Innospec and sentencing, Ancillary orders, Compensation order, Confiscation order, Financial reporting order, Serious crime prevention order, Civil recovery orders under the Proceeds of Crime Act 2002
Agreements with SFO to accept civil penalties, Disqualification as a director, Other sentences Debarment from public procurement, Proposed amendment of UK regulations, Role of the Financial Services Authority
Bribery Act 2010: section 12, Introduction, Sections 1, 2 and 6: territorial jurisdiction, Section 1 – provision of bribes, Section 2 – receipt of bribes, Section 6 – providing bribes to a foreign public official, Sections 1, 2 and 6: nationality jurisdiction, British citizen, British overseas territories citizen, British national (overseas), British overseas citizen, British subject under the British Nationality Act 1981, British protected person, Individual ordinarily resident in the UK, UK incorporated body, British overseas territories/Crown dependency incorporated bodies, Section 7: failure of commercial organisations to prevent bribery, Specific provisions in relation to Scots criminal procedure
Accessory Liability, Inchoate Offences, Related Offences and Extradition
Introduction, Accessory liability for bribery offences, Aiding and abetting, counselling and procuring, Encouraging or assisting crime – Serious Crime Act 2007, Conspiracy, Fact of agreement Impossibility, Intention to agree and fulfil agreement, The uses of conspiracy, Attempt, More than merely preparatory, Specific intent, Fraud, Fraud by abuse of position, Conspiracy to defraud, Money laundering, Criminal property, Main offences, Regulated sector, False accounting, Failure of companies to keep accurate records, Misconduct in public office, Extradition
Introduction, Civil procedure, Jurisdiction, Arbitration, Key principles, Bribery as a civil wrong, The agent/principal relationship, Fiduciary duties, Definition of civil bribery, Proof of bribery, Knowledge of principal, Overview of claims, Claims against an agent, Breach of contract, Civil fraud, Unjust enrichment and restitution, Breach of fiduciary duty: account of profits and constructive trust Conspiracy, Claims against the briber, Transaction void, Rescission, Bars to rescission, Damages for fraud and inducing breach of contract, Unjust enrichment claim against the briber, Dishonest assistance in a breach of fiduciary duty, Recovery of briber’s profits, Conspiracy, Election and tracing, Election, Tracing, Claims against third parties other than the agent or briber, Claims by parties other than the principal of the agent, Unlawful means conspiracy, Breach of implied term of contract Collusion in anti-competitive behaviour, Interim relief ,Freezing order, Search order, Form and content of the search order ,Supplemental orders, Civil recovery by states against former officials
Particular Problems: Hospitality, Promotion, Facilitation Payments, Extortion and Mergers
Introduction, Corporate hospitality and promotional expenses, Private sector hospitality, Hospitality and the UK public sector, Hospitality and foreign public officials, Scenario A, Travel and events, Conference, Hedge fund fees, Next steps, Facilitation payments, extortion and mergers and acquisitions, Mergers and acquisitions, Scenario B, Port services fees, Cash for speedy visas, Inspection costs rebate, Austeristan airport – visa problems, Austeristan airport – threat of imprisonment, Subsequent allegations, Next steps
The Bribery Act 2010, The Bribery Act 2010: Explanatory Notes,Ministry of Justice Guidance, Section 9 of the Bribery Act 2010, Ministry of Justice Guidance, The Bribery Act 2010, Quick Start Guide, Joint Prosecution Guidance on the Bribery Act 2010, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Commentaries on the OECD Convention, United Nations Convention Against Corruption, List of Useful Websites
Eoin O’Shea specialises in advising businesses on economic crime, including fraud, bla…
"Eoin O'Shea has produced an excellent primer on the Act, and about much more than the Act. He shows how it fits in with other relevant civil and criminal legislation. He brings out clearly how and why those who would condone bribery, as some nationally-known commentators have, are at best ill-informed, at worst cynical and self-serving.
Eoin demolishes the Government's notion that a UK stock exchange listing will not in itself bring a company under the provisions of the Act, and is equally forthright in assessing that carrying out due diligence only on your immediate sub-contractors is unlikely to be seen by a court as "adequate"!
Not surprisingly, he is less strong on the due diligence needed in foreign markets, and on the sources of help that are available to assist this. Nevertheless, this is a first-class book that will be a valuable resource for anyone concerned with the application of the Bribery Act"
Anti-Corruption Forum Newsletter
"a useful guide ... takes a look at the defence and looks at its territorial application ... provisions are dissected with hypothetical examples ...In a world where there is so much misreporting of the Bribery Act the book is a welcome addition ... for those responsible for compliance and putting in place adequate procedures to prevent bribery the book will be a valuable reference work" ... more
"erudite and readable book...If you're a practitioner in this field, the practical approach taken by this guide will familiarise you with this important new legislation and its many implications." ... more
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
After a very long gestation period, the Bribery Act 2010 came into force on 1 July 2011. The main purpose of this book is to provide a guide to the Act for those in the commerce and public service, as well as their advisers. This involves some analysis of the most important parts of the Act and discussion of the guidance material on adequate procedures and prosecution priorities which have been published recently.
Bribery and corruption have been an affliction of many societies from time immemorial. In 1693, William Penn pithily expressed a view many may share:
‘The taking of a bribe or gratuity should be punished with as severe penalties as the defrauding of the state.’
In more recent times in 2004, Kofi Annan, the then UN Secretary General described its effects:
‘Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organised crime, terrorism and other threats to human security to flourish. This evil phenomenon is found in all countries – big and small, rich and poor – but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development.’
No-one could but agree with these remarks, for reasons the author clearly explains in Chapter 1.
Much more difficult is finding the right means of preventing and punishing bribery and corruption, particularly where these crimes cross national boundaries. The Bribery Act of 2010 is the response of the United Kingdom by setting its law in a modern context and in line with its international
The preparatory work by the Law Commission was thorough. The Act is based on its draft proposals and draft bill. After some political controversy and the publication of the guidance under s 9 issued by the Secretary of State, it comes into force as this comprehensive book is published.
The book has been the product of immense industry, reflection and thought. It carefully traces the history of the legislation and then sets out in successive chapters a detailed and clear analysis of the legislation. It helpfully contains a number of appendices, containing not only the text of the Act and the explanatory notes but the guidance given under s 9, the DPP’s guidance and the OECD Convention and its commentary. One helpful feature is that it contains references to broader principles which provide a useful introduction to areas of the law with which some readers might not be familiar, but which are necessary to understand the operation of Act.
This book identifies the difficult issues of interpretation and attempts to answer them, as the author modestly claims. I have no doubt it will be of considerable assistance to the courts when such issues arise for decision, even if the answers given may sometimes differ from those elegantly suggested by the author.
It helpfully examines the practical implications of the legislation for companies and individuals in a way many will find useful. It tackles the issues relating to the likely policy of enforcement and prosecution. This last is an area to which much thought is now being given, for without effective, speedy and appropriate methods of enforcement and punishment, the Act will be seen as having failed its purpose.
Lord Justice Thomas
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