Under Section 1, a person is guilty of an offence if either of the following cases applies.
Case 1 is where a person offers, promises or gives a financial or other advantage to another person, and intends the advantage to induce a person to perform improperly a relevant function or activity, or to reward a person for the improper performance of such a function or activity.
Case 2 is where a person offers, promises or gives a financial or other advantage to another person, and that person knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity.
In addition, under Section 7 a relevant commercial organisation is guilty of an offence if a person associated with the organisation bribes another person intending to obtain or retain business for the organisation, or to obtain or retain an advantage in the conduct of business for the organisation.
It is a defence for the organisation to prove that it had in place adequate procedures designed to prevent persons associated with the organisation from undertaking such conduct.
A ‘relevant commercial organisation‘ is defined at Section 7(5) as a body or partnership incorporated or formed in the UK irrespective of where it carries on a business, or an incorporated body or partnership which carries on a business or part of a business in the UK irrespective of the place of incorporation or formation. According to guidance from the Ministry of Justice (‘MoJ‘), the key concept is that of an organisation which ‘carries on a business’. The courts will be the final arbiter as to whether an organisation ‘carries on a business’ in the UK taking into account the particular facts in individual cases.
According to the MoJ guidance, in accordance with established case law, the standard of proof which the commercial organisation would need to discharge in order to prove the defence, in the event it was prosecuted, is the balance of probabilities.
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The UK Bribery Act 2010 regulates two general offences covering the offering, promising or giving of a bribe and the requesting, agreeing to receive or accepting of a bribe under Sections 1 and 2 respectively.
The Bribery Act also sets out two further offences which specifically address commercial bribery.
Last Updated: July 30, 2019
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