Part H Governance and ethical issues relating to business 22: Fraudulent and criminal behaviour 349
5.1.3 Relevant function or activity
Both of the above offences make reference to a 'relevant function or activity' and it is important to be
aware of what this means. In terms of the Act, a relevant function or activity includes any function of a
public nature or any activity connected with business or carried out in the course of employment. It
applies to individuals who perform that function or activity from a position of trust or are otherwise
expected to perform it in good faith or impartially.
It is irrelevant whether the function or activity has a connection with the UK – for example if it is
performed outside the UK. 'Improper' performance means performance which does not meet the standard
that a reasonable person in the UK would expect.
5.1.4 Bribing a foreign public official
This offence is similar to that of bribing another person, but is committed where the bribe is offered to a
foreign public official (FPO). It is committed where a person offers financial or other advantages to an
FPO or a third party with the intention of influencing the FPO in that capacity and to obtain or retain
business or an advantage in the conduct of business, where that official is not permitted or required by the
written law applicable to them to be so influenced.
An FPO is any individual who holds a legislative, administrative or judicial position of any kind outside
the UK, or who exercises a public function outside the UK, or who is an official or agent of a public
international organisation.
5.1.5 Defences and penalties for individual offences
It is a defence for an individual charged with a bribery offence if they can prove that their conduct was
necessary for the proper exercise of any function of an intelligence service or the proper exercise of
any function of the armed forces when engaged on active service.
The maximum penalty for bribery under the Act is ten years' imprisonment and/or an unlimited fine.
5.1.6 Corporate failure to prevent bribery
The offence of corporate failure to prevent bribery is committed by an organisation that fails to prevent a
bribery offence being committed by a person who performs services for it in any capacity – such as an
agent, employee or subsidiary. Under the Act, an organisation includes companies and partnerships
based in the UK or doing business in the UK.
5.1.7 Defence and penalties for corporate offences
An organisation has a defence to this offence if it can prove that it had in place 'adequate procedures'
designed to prevent persons associated with it from committing bribery.
'Adequate procedures' are not defined by the Act, but the Secretary of State's non-prescriptive published
guidance on adequate procedures is based around six principles:
(a) Proportionate procedures – organisations should have procedures in place aimed at preventing
bribery. The scale and complexity of the procedures should be proportionate to the size of the
organisation. The procedures expected of a small organisation will differ from that of a large one.
(b) Top-level commitment – an organisation's senior management should be committed to preventing
bribery and should foster a culture in the organisation that sees bribery as unacceptable.
(c) Risk assessment – organisations should assess the nature and extent of their exposure to bribery
from both inside and outside the organisation. Some industries and some overseas markets are
seen as, by their nature, more susceptible to bribery and therefore risk assessments in these areas
should be even more stringent.
(d) Due diligence – organisations should perform due diligence procedures in respect of those who
perform services for the organisation or on its behalf, to mitigate the risk of bribery.