Futuro de la Provincia de Chota

whether the advantage is (or is to be) for the benefit of yourself or another person. It also doesn’t matter whether you know or believe that the performance of the function or activity is improper. If another is performing the function or activity, it also does not matter whether that person knows or believes that the performance of the function or activity is improper.

2.3.4 Functions and Activities

Sections 1 and 2 talk about bribery in relation to a relevant function or activity. The Act casts this net widely, capturing people in public life as well as business. Section 3 states that a relevant function or activity is:

• any function of a public nature;

• any activity connected with a business;

• any activity performed in the course of a person’s employment; any activity performed by or on behalf of a body of persons (whether corporate or unincorporate).

The three conditions related to the relevant function or activity are that the person performing the function or activity is:

a. expected to perform it in good faith; b. expected to perform it impartially; and

c. in a position of trust by virtue of performing it.

Section 4 then states what comprises an improper performance of a relevant function or activity: if it is performed in breach of a relevant expectation, and if there is a failure to perform the function or activity and that failure is itself a breach of a relevant expectation. Relevant expectation in relation to a function or activity that meets condition A or B means the expectation mentioned in that condition. In relation to condition C, it means any expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from the position of trust.

Section 5 then addresses the expectation test, which is a test of: what a reasonable person in the

UK would expect in relation to the performing of the type of function or activity concerned. If this relates

to performance abroad, the Act specifically excludes custom and practice, unless it is permitted or required by that country’s written law (which includes any written constitution, law or published written financial decisions).

2.3.5 Section 6 – Bribery of a Foreign Public Official (FPO)

Section 6 introduces a stand-alone offence of bribing a foreign public official (FPO), notwithstanding that the act of making such a bribe could also fall under the Section 1 offence. The offence concerns an intention to influence so that the payer intends to obtain or retain business, or an advantage in the conduct of business. The bribe could be made directly, or through another person at the FPO’s request or with the FPO’s assent or acquiescence or through a third party.

However, the offence is not committed if the FPO is permitted or required by the applicable written law of their country to be influenced by the advantage. The influence involves exercising or not exercising their official functions and any use of their position as an official, even if not within their authority.

The definition of an FPO is important to understand and is dealt with in Section 2.4.

2.3.6 Section 7 – Failure of Commercial Organisations to Prevent

Bribery

A commercial organisation is guilty of an offence under this section of the Act if a person associated with the commercial organisation bribes another person, intending to obtain or retain business for the commercial organisation, or to obtain or retain an advantage in the conduct of business for the commercial organisation. The section states that, for the purposes of a commercial organisation being guilty of an offence as a result of bribery by an associated person, the associated person is deemed to have bribed another if they: are, or would be guilty of an offence under Section 1 (Bribing Another Person) or Section 6 (Bribing a Foreign Public Official). The meaning of a person associated with the commercial organisation is described in more detail in Section 2.8. The Act has a broad definition of what comprises a relevant commercial organisation. Section 7(5) defines a relevant commercial organisation as a body or partnership incorporated in the UK, wherever it carries out business, or any other body or partnership (wherever incorporated) which carries on a business, or part of a business, in any part of the UK. The term partnership relates to bodies set up under the Partnership Act 1890, or a limited partnership registered under the Limited Partnerships Act 1907.

The Act also states that a trade or profession is a business.

2.3.7 Exempted Offences

The Act recognises that on occasion agents of the state may need to undertake activity that fall within the sections outlined above. It contains a defence against bribery offences payments necessary for the proper exercise of any function of:

• an intelligence service; or

• the armed forces when engaged on active service. This covers a:

a. member of the armed forces who is engaged on active service; or

b. civilian subject to service discipline, when working in support of a member of the armed forces, who is engaged on active service.

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2.4

The Definition of a Foreign Public Official (FPO)

Learning Objective

6.2.4 Know the definition of an FPO

According to the Act a foreign public official (FPO) applies to a person who:

• holds a legislative, administrative or judicial position of any kind, whether appointed or elected in another country, or who exercises a public function for the country or for any public agency or public enterprise of that country or territory (or subdivision); or

• is an official or agent of a public international organisation.

This definition is derived from the OECD Convention:

i. FPO means any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organisation;

ii. foreign country includes all levels and subdivisions of government, from national to local; iii. act or refrain from acting in relation to the performance of official duties includes any use of

the public official’s position, whether or not within the official’s authorised competence.

For contrast, the UNCAC definition is:

1. any person holding a legislative, executive, administrative or judicial office of a state party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority;

2. any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the state party and as applied in the pertinent area of law of that state party;

3. any other person defined as a public official in the domestic law of a state party.

2.5

Adequate Procedures

Learning Objective

6.2.5 Understand strict liability and the meaning of ‘adequate procedures’

There is strict liability for commercial organisations in that a relevant commercial organisation is guilty of an offence under Section 7 if a person associated with the organisation bribes another person intending to obtain or retain business (or an advantage in business) for the organisation, irrespective of whether they were told or asked to do so. It is worth noting that, for the purposes of this section, bribing another person includes being guilty of offences under Section 1 and 6 whether or not the person has been persecuted for such an offence.

In terms of the liability of individuals in a commercial organisation, they are only liable under Section 14 on conviction of any person or associated person convicted under the Act. This is not strict liability, but based on consent and connivance. A company being convicted for failing to prevent bribery under Section 7 does not mean that officers of the company will be convicted.

However, the Act does supply a defence for a commercial organisation, should an associated person carry out bribery, if they can show that they had adequate procedures in place to prevent it.

When organisations are held to account for any criminal or civil investigation, the key in the past has been to identify the guiding or controlling mind – the individual or individuals acting for or directing the organisation. Without that individualisation of intent or intention, addressing organisational responsibility has been a legal problem in terms of individual punishment:

It is difficult to penetrate the inner workings of the organisation to know who did what in bringing about the criminal harm. Or sometimes it might be the case that one person possesses the relevant information, another makes a decision to act, and still another carries out the action. In this situation, the diffusion of function makes it impossible to hold a single individual responsible for the crime. These difficulties, plus the general sense that organized action has an increasing impact on the lives of ordinary individuals, have generated pressure towards the prosecution and appropriate punishment of legally created entities that bring about criminally prescribed harms.4

With the Bribery Act it is no longer necessary to prove that a guiding mind of the company decided that a bribe should or could be paid, but that the company procedures were such as to allow it to happen; in other words, no one person or persons was responsible for the result but the actions of several persons (possibly with no intention to lead to an unlawful outcome) collectively contributed to that outcome. The Act assumes the organisation will have adequate procedures and will take action against the organisation if bribery occurs and such procedures are not in place.

According to government guidance5_{: the objective of the Act is not to bring the full force of the criminal}

law to bear upon well run commercial organisations that experience an isolated incident of bribery on their behalf. So in order to achieve an appropriate balance, Section 7 provides a full defence. This is in recognition of the fact that no bribery prevention regime will be capable of preventing bribery at all times. However, the defence is also included in order to encourage commercial organisations to put procedures in place to prevent bribery by persons associated with them.

The commercial organisation will have a full defence if it can show that, despite a particular case of bribery, it nevertheless had adequate procedures in place to prevent persons associated with it from bribing. The question of the adequacy of procedures will depend on the facts of the case, including the level of control over the activities of the associated person and the degree of risk requiring mitigation.

4 Fletcher, G.P. (1998). Basic Concepts of Criminal Law. Oxford: OUP. p.201

5 Ministry of Justice, The Bribery Act 2010: Guidance (issued under Section 9), found at: http://www.justice.gov.uk/

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