Practice questions 417Improper performance to which the bribe relates
Section 4 provides that a relevant function or activity is performed improperly if it is per-
formed in breach of a relevant expectation, or if there is a failure to perform the function
or activity and that failure is itself a breach of a relevant expectation. Section 5 sets out an
expectation test. For the purposes of ss. 3 and 4, the test of what is expected is a test of what
a reasonable person in the United Kingdom would expect in relation to the performance of
the type of function or activity concerned. For example, it would be expected that a police
officer should not take money to overlook a crime. Where the function or activity is not
subject to the law of the United Kingdom, any local custom or practice is to be disregarded
unless it is permitted or required by the written law of the country concerned.
Defences and penalties
It is a defence for an accused to prove that his conduct was required by the armed forces or
the intelligence services. The maximum penalty for offences under ss. 1, 2 or 6 is ten years’
imprisonment or a fine. The s. 7 offence is punishable only by a fine.
Essential points
n The actus reusof an offence is the guilty act. The mens reais the guilty mind.
n A crime of strict liability is one which does not require the prosecution to prove mens
reain respect of one or more elements of the actus reus.
n The Consumer Protection from Unfair Trading Regulations 2008 prohibit unfair
commercial practices.
A commercial practice is generally unfair if –
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of
the average consumer with regard to the product.
It is an offence to knowingly or recklessly engage in a commercial practice which is
generally unfair.
A commercial practice is also unfair: if it is a misleading action; if it is a misleading
omission; or if it is listed in Schedule 1 of the regulations. It is an offence of strict
liability to commit a commercial practice which is unfair in one of these ways.
n The Bribery Act 2010 creates four offences in relation to bribery. These are bribing
another person; requesting, agreeing to receive or requesting a bribe; bribing a foreign
official; and failure by a commercial organisation to prevent a bribe.
Practice questions
1 Consider whether or not an offence has been committed under the Consumer Protection
from Unfair Trading Regulations 2008 in the following circumstances.
(a) A representative from a holiday company drives consumers to a remote area of Dartmoor
and refuses to bring them back until they agree to take out extra holiday insurance.
(b) A trader increases his prices by more than the rate of inflation.