Bribing another person (Section 1)
The following elements are required to establish this offence:
- A person (the "briber") must offer, promise or give a financial or other advantage to another person;
- The briber must:
- Intend the advantage either to induce a person to improperly perform a function or activity or reward a person for improperly performing a function or activity (case 1); or
- Know or believe that the acceptance of the advantage would itself constitute the improper performance of a function or activity (case 2).
Further points to note
- It is not necessary that the person who is bribed is the same person who performs the improper activity in question, so one employee in a company may be bribed, who then induces another to perform the activity.
- It appears from the language that the briber's intention must be not just that the function is performed, but that the briber knows that that the performance sought is "improper", although this is not entirely clear. If so, there must be "improper performance" from a reasonable person's point of view and the briber himself must also be shown to have appreciated that the performance was improper. How the reasonable person's point of view will be ascertained in respect of "improper performance" effected overseas remains to be seen.
- Facilitation payments will be caught.
- Corporate hospitality may be caught if the requisite intent is shown.
- The offence does not apply only to the bribing of public officials.
This, for example, can be a public activity or an activity connected with a business, trade or profession, or on behalf of a company.
An omission can in some circumstances amount to improper "performance", e.g not awarding a contract to a particular company's competitor.
The bribe does not have to be made directly. It can be given through a third party.
The meaning of "financial or other advantage" has not been defined, but it is clear that the bribe does not have to be monetary. The provision of goods and services or a favour in return, for example, will be enough..