Out-Law News | 20 Nov 2008 | 5:34 pm | 2 min. read
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 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 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 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.