ABSTRACT
Bribery and corruption have received a considerable amount of attention since the introduction and implementation of the Bribery Act 2010 and the extension of the remit of the Serious Fraud Office (SFO). Bribery has been referred to as an illegal gratuity, extortion, conflict of interest, kickback, corporate espionage and a commission or fee. According to the Organisation for Economic Co-operation and Development (OECD), bribery is defined as ‘the offering, promising or giving [of] something in order to influence a public official in the execution of his/her official duties’. 1 However, perhaps one of the simplest definitions is offered by the SFO, which argues that bribery is the ‘giving or receiving [of] something of value to influence a transaction’. 2 A bribe can therefore include:
money, other pecuniary advantages, such as [a] scholarship for a child’s college education, or non-pecuniary benefits, such as favourable publicity. In the international context, bribery involves a business firm from country A offering financial or non-financial inducements to officials of country B to obtain a commercial benefit. 3
indirect. The more common of these two types is indirect, and this is usually conducted via an agent or a go-between. This type of conduct traditionally arises where the respective parties agree to meet to try to gain a competitive advantage, for example. The agent is normally paid a commission from the additional revenue generated by the resultant work or trade. 5 Beale and Esposito offer the following useful example of what constitutes a direct bribe:
A company commences arbitration against the government of a country and the government’s defence is that it has recently learned that the company paid bribes to government employees or officials in connection with the project; that is an allegation of direct bribery. 6
Denning, citing Latymer, stated that bribery was ‘a princely kind of thieving’, 7 yet despite these simple definitions it is still a very difficult term to define. 8 This point is illustrated by the different statutory definitions of bribery offered by the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. The uncertainty over its definition was clarified by the Bribery Act 2010. To aid with this clarity, this chapter begins by outlining the relevant offences created by the Bribery Act and then goes on to look at the United Kingdom’s (UK) bribery policy, which is administered by the Ministry of Justice and enforced by the SFO in conjunction with the Financial Conduct Authority (FCA). The policy, which has been adopted, is very similar to that outlined in the previous chapters of this book and can be divided into three parts: criminalisation, regulatory agencies and the use of suspicious transactions reports. The primary focus of this chapter will therefore be to analyse these initiatives including an attempt to quantify the extent of the problem. The final part of the chapter reviews the available criminal and civil sentencing options and practices.
What is the offence of bribery?
