The law reform body called the current law of England and Wales
out-dated and in some cases unfit for purpose. It said that Acts
still in force from 1889, 1906 and 1916 should be scrapped.
The Law Commission also recommends a new offence of bribing a
foreign public official and an extension of the law of bribery to
cover foreign nationals who reside in the UK and conduct their
business there.
It proposes two general offences of bribery: one concerned with
the conduct of the payer, and the other with the conduct of the
recipient. It also proposes specific offences, including the
corporate offence.
The offence committed by the payer
The payer "must be shown, directly or through a third party, to
have given, offered or promised an advantage (to be left undefined)
to [the recipient] or to someone else," suggests the Law
Commission.
The payer must be shown to have intended to induce the recipient
or another to perform a relevant function or activity improperly,
or to reward the recipient or another for such conduct.
The offence committed by the recipient
The recipient "must be shown to have requested, agreed to
receive, or accepted an advantage from another person, for him or
herself or for another," it says.
The prosecution must show that the recipient intended that, in
consequence, a relevant function or activity should be performed
improperly. Alternatively, it must be shown that the recipient's
request for, agreement to receive or acceptance of the advantage
itself constituted the improper performance of a relevant function
or activity.
The corporate offence
The Law Commission recommends that it should be an offence for a
company "negligently to fail to prevent bribery where someone (A)
performing services on that organisation’s behalf bribes another
person, the bribe was in connection with the business of that
organisation, and someone (other than A) connected with or employed
by the organisation, who has responsibility for preventing bribery,
negligently fails to prevent A bribing the other person."
The offence would apply to a company or limited liability
partnership of which the registered office is situated in England
and Wales.
"We recommend that it should be possible to hold directors,
managers, secretaries or similar officers of a body corporate
individually liable if they consent to or connive at the commission
of bribery by the body corporate," said the Law Commission.
It would be a defence under the proposed law that a company had
adequate systems in place to prevent bribery.
Justice Secretary Jack Straw welcomed the recommendations for
change.
"Bribery is a cancer which destroys the integrity,
accountability and honesty that underpins ethical standards both in
public life and in the business community," he said. "The fight
against bribery is not an optional extra or a luxury to be
dispensed with in testing economic times."
Straw said that the Government will consider the Commission's
recommendations and build on them to bring forward a draft bill for
pre-legislative scrutiny in the next session.
