Press Release

“Fragmented and out of date” – it’s time to get the law of bribery right

29 November 2007

The English law of bribery is highly complex. The concepts which underpin the current law, such as “corruptly” and “agent”, are not clearly defined, leaving them open to very different judicial interpretations. In addition, although bribery in the public and private sectors is in some respects treated differently under the law, it is not at all clear where the boundaries lie. There is general agreement that the law is in need of reform but little consensus on how it can best be achieved.

Professor Jeremy Horder, the Commissioner leading the project, said;

“We have been asked to take a fresh look at this perennial problem with the law with a view to sorting it out once and for all. At present, the numerous and overlapping statutes are causing confusion. Furthermore, personal liability for bribery committed outside England and Wales is confined to British nationals, despite the fact that many foreign nationals now reside in London and conduct their global business from there. We’re eager to hear views on our proposals for reform.”

In “Reforming Bribery”, published today, the Law Commission sets out these provisional proposals for reform. The overall aim is for a new offence of Bribery, which is clearly defined and consistent with our international obligations. The offence would capture cases where someone offers an advantage to another person as a reward for breaching a trust, or breaching a duty to act impartially or in the best interests of another person. The person receiving or soliciting that advantage would also be liable for prosecution. It would also cover cases where someone is offered an advantage to use his or her influence to induce another person to breach a duty of trust or a duty to act impartially.

In addition, the Commission suggests there should be a new offence of bribing a foreign public official.

Foreign nationals resident in England and Wales who committed these offences, would be subject to the law, irrespective of whether the bribery occurred abroad.

Examples illustrating what the proposals would mean are attached.

Consultation on the Law Commission’s proposals to reform the current law will close 20 March 2008.

Notes for Editors
1. The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.
2. For further details on this project visit http://www.lawcom.gov.uk/bribery.htm.
3. To respond to the consultation email criminal@lawcommission.gsi.gov.uk
4. For all press queries please contact:
Correna Callender, Head of Communications 020 7453 1273
or Dan Leighton 020 7453 1235
e-mail: communications@lawcommission.gsi.gov.uk

EXAMPLES

P and R are applicants for a job with X Ltd. P offers R, who is better qualified than P for the position, a large sum of money to withdraw his application. R accepts the offer and withdraws.

Neither P nor R would be guilty of bribery. P was under no duty to X Ltd to maximise the field of choice or to allow X Ltd to choose the best candidate.

P is an insurance provider. R is a broker of insurance policies who sells, amongst others, P’s policies. R receives a commission form P every time he sells one of P’s policies. R recommends one of P’s policies to X. He does so knowing that the policy is not the most suitable for X. However, R is anxious to secure the commission. X accepts the recommendation.

R would be guilty of bribery. He owes a duty to act impartially and in X’s best interests. He has broken that duty and the primary reason that he has done so is in order to secure the commission. By contrast, P would be guilty of bribery only if he intended that the commission should be the primary reason for R to recommend a policy that was unsuitable for X or he foresaw that a serious risk that the commission would be the primary reason for R to recommend an unsuitable policy.

P is self-employed and is heavily reliant on business from Z Ltd. P is afraid that Z Ltd will switch its business to L who is offering more competitive terms.

Accordingly, he flies R the directors of Z Ltd to an exotic location and puts them up in a five star hotel. The primary reason that P does so is to ensure that Z Ltd continues to do business with P regardless of whether it is in the interests of the shareholders of Z Ltd.

Under the current law, it is questionable whether P can be convicted of bribery.

Under our proposals, it would be possible to convict P of bribery because he has conferred an advantage in order to induce R to breach a duty that they owe to act in the best interests of the shareholders.

P is trying to set up a new business. In order to do so, he needs a licence from X that he does not qualify for. P pays R (X’s wife) a considerable sum of money for her to convince her husband to act improperly and grant a licence. She does so and X, without knowing that his wife has been bribed by P, grants the licence.

In this example, X has breached a duty that he owes but has not done so in return for an advantage. By contrast, R has not breached a duty but, in return for an advantage, has used her influence to induce X to breach a duty. Under our proposals, both P and R would be guilty of bribery. Under the current law neither P nor R would be guilty of bribery.

P, a foreign national, resides in London where he works as a middle-ranking manager for a British company. P goes abroad on company business and, unknown to his superiors, bribes a foreign official. P returns to London.

Under the current law, P cannot be convicted of bribery because he is a foreign national. Under our proposals, he can be convicted of bribery