416 Chapter 15Regulation of business by the criminal law
Section 2 creates several offences relating to being bribed. These offences are called Case
3, Case 4, Case 5 and Case 6. The Case 3 offence is committed by an accused who requests,
agrees to receive or accepts a financial or other advantage, intending that, in consequence,
a relevant function or activity should be performed improperly. The improper performance
can be by the accused or by another person. The Case 4 offence is committed by an accused
who requests, agrees to receive or accepts a financial or other advantage, and the request,
agreement or acceptance itself constitutes the improper performance by the accused of a
relevant function or activity. The Case 5 offence is committed by an accused who requests,
agrees to receive or accepts a financial or other advantage as a reward for the improper
performance (by the accused or by another person) of a relevant function or activity. The
Case 6 offence is committed where, in anticipation of or in consequence of the accused
requesting, agreeing to receive or accepting a financial or other advantage, a relevant
function or activity is performed improperly. The improper performance can be either by
the accused or by another person with the accused’s assent or acquiescence. As regards
Cases 3–6, it does not matter whether the accused requests, agrees to receive or accepts the
advantage directly or through a third party. Nor does it matter whether the advantage is for
the benefit of the accused or for the benefit of another person. As regards Cases 4– 6, it does
not matter whether the accused knew or believed that the performance of the function
or activity was improper. In Case 6, where a person other than the accused is performing
the function or activity, it does not matter whether the person knows or believes that the
performance of the function or activity is improper.
Section 6 makes it an offence to bribe foreign officials. The accused must intend to
influence the foreign official in his capacity as a foreign official. The accused must also
intend to obtain or retain business, or intend to obtain or retain an advantage in the
conduct of business. Furthermore, the offence is committed only if the accused, directly or
through a third party, promises or gives any financial or other advantage to the foreign
official or gives it to another person at the foreign official’s request or with his assent or
acquiescence.
Section 7 makes it an offence for a commercial organisation to fail to prevent bribery. This
offence is committed by a commercial organisation (C) if a person connected with C bribes
another person intending to obtain or retain business for C, or intending to obtain or retain
an advantage in the conduct of business for C. However, it is a defence for C to prove that
C had in place adequate protection procedures to prevent persons connected with (C) from
undertaking such conduct.A relevant function or activity
A relevant function or activity is defined by s. 3 as one which is either:(a) 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 such as a company or a
partnership.However, a function can be a relevant function only if the person performing it is expected
to perform it in good faith, or impartially or if the person performing it is in a position of
trust by virtue of performing it. The function or activity does not need to be performed in
the UK or to have a connection with the UK.