Report No. 258
J. United Kingdom42
42 The information on the United Kingdom has been taken from the 'Country Review Report of the United Kingdom', Review by Greece and Israel for the review cycle 2011-2012, United Nations Office on Drugs and Crime; See also 'Self-Assessment for United Nations Convention Against Corruption - Chapters III and IV', Justin Williams, Policy Adviser, Anti-Corruption, Department for International Development, United Nations Office on Drugs and Crime (2011).
3.11.1 The United Kingdom of Great Britain and Northern Ireland ("UK") signed the UNCAC in 2003 and subsequently ratified it in 2006. As noted in its Country Review Report, UK demonstrates an exemplary system of curbing bribery and corruption. The institutional framework for checking corruption in the UK mainly consists of the international anti-corruption Champion that is housed in the Cabinet, the office of the Attorney General for England and Wales, the Crown Prosecution Service ("CPS") and the Serious Fraud Office ("SFO") and the Serious and Organised Crime Division within the Crown Office.
3.11.2 Both active and passive bribery of national public officials as mentioned under clauses (a) and (b) of Article 15 of the UNCAC, are penalised under sections 1, 2, 3, 5 and 11 of the UK Bribery Act. The Act does not use the concept of a "public official" to describe the beneficiary of the undue and unlawful advantage, thereby dispensing with the need for a definition similar to the one under Article 2 (a) of the UNCAC. Consequently, the Act focuses instead on the "function or activity" to which the bribe relates.
This "function or activity" holds relevance for the purpose of applying the Bribery Act to unlawful conduct that is performed outside the UK, thus covering all public servants (such as military of diplomatic staff) within its scope. The elements of the offences of active and passive bribery are discussed in great detail under the relevant provisions of the Bribery Act.
They also cover instances where no gift or other benefit is actually given or received. The improper performance of an official function in anticipation or as a consequence of a bribe also constitutes an offence under the Bribery Act. Both tangible and intangible benefits are of relevance for the purpose of the corrupt conduct.
3.11.3 In the context of paragraph 1 of Article 16, the requisite elements of the offence of active bribery are covered under section 6 of the Bribery Act. The conduct implicated includes instances where no gift or other benefit is actually given or received. In contrast to the active and passive bribery of national public officials, section 6 also includes offerings to third parties that are made at the request of a foreign public official or an official of a public international organisation or with his "assent or acquiescence".
Socially adequate gifts and offerings can be interpreted to not constitute bribery only in the instance where it is determined that they were not intended to influence their recipient. Sanctions for active and passive bribery of national public officials, foreign public officials and officials of public international organisations are the same under the Bribery Act. UK law also does not specifically require the bribery of foreign public officials to constitute an offence under the domestic law of the concerned foreign country.
3.11.4 In the context of paragraph 2 of Article 16 of the UNCAC, UK penalises the passive bribery of foreign public officials and officials of public international organisations under section 2 of the Bribery Act. Under section 2, the acceptance of bribe by any person including a foreign public official or an official of a public international organisation constitutes a criminal offence under the Bribery Act. Thus, while there is no specific offence of passive bribery by foreign public officials and officials of public international organisations, the general offence covering passive bribery is applicable to all such officials.
3.11.5 In relation to the jurisdictional clauses under the UNCAC, all acts of corruption committed within the territory of the UK are punishable under the UK criminal law. In addition, jurisdiction is also exercisable over offences committed on board UK ships.
In the context of the offence of bribery in particular, section 12 of the Bribery Act also lists out the extended active nationality principle wherein all persons who have "a close connection with the United Kingdom", including British citizens, individuals ordinarily resident in the UK, bodies incorporated under UK law (including UK subsidiaries of foreign companies) and Scottish partnerships are covered within the scope of application of the provisions on bribery.
The defences applicable to a charge of bribery include (1) the written law that are applicable in the country or territory concerned, (2) bona-fide expenditure including travel, which is related to promotional activities and (3) due diligence by companies that ensures that none of its employees, agents or any other associated persons are involved in the act of bribery.
3.11.6 In the light of the above discussion, it can be inferred that legislations in various jurisdictions that attempt to penalise active and passive bribery under Article 16 of the UNCAC, do so with caution in order to preserve harmonious diplomatic ties. The 10 countries surveyed have criminalised active bribery of foreign public officials and officials of public international organisations under paragraph 1 of 16 of the UNCAC. However, in the context of paragraph 2 of Article 16, only two countries (Malaysia and Switzerland) have a specific provision under its bribery law on paragraph 2 of Article 16.
Of the remaining 8 countries, three (Australia, Canada, and El Salvador) do not penalise passive bribery of foreign public officials and officials of public international organisations under any circumstances, while five (Austria, South Africa, South Korea, UK and USA) have general provisions applicable to all persons which can be construed to cover passive bribery of foreign public officials and officials of public international organisations. Principles of nationality and territoriality under Article 42 read with Article 4 of the UNCAC are followed in all countries except El Salvador, where the overall application of these principles is not clear.