Corruption (Jersey) Law 1996 v Bribery Act 2010 cntd | Parslows Criminal Defence Lawyers Jersey
Territorial application of both Laws.
A person may be tried in Jersey for an offence under Jersey law, if any of the acts alleged to constitute the offence were committed in Jersey, even if the other acts constituting the offence were committed outside Jersey.
Where a national of the UK resident in Jersey, a Jersey company or a limited liability partnership does anything in a country or territory outside Jersey; and the act would if done in Jersey, constitute an offence under this law, the act shall constitute the offence under this Law and proceedings for it may be taken in Jersey.
An offence is committed in England and Wales, Scotland or N. Ireland if any act or omission, which forms part of the offence, takes place in that part of the UK.
But even if no act or omission forms part of an offence under the BA 2010, it will still apply, if the person has a close connection with the UK and his acts or omissions done or made outside the UK would form part of such an offence if done or made in the UK,
There will be a close connection with the UK if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made:-
(a) a British citizen;
(b) a British overseas territories citizen;
(c ) a British National (Overseas)
(d) a British Overseas citizen
(e) a person who under the British Nationality Act 1981 was a British subject
(f) a British protected person within the meaning of that Act
(g) an individual ordinarily resident in the UK
(h) a body incorporated under the law of any part of the UK
(i) a Scottish partnership
What are the offences?
It shall be an offence for a person corruptly to:-
any advantage as an inducement or reward to a member, officer, or employee of a public body, in respect of any matter or transaction whatsoever, whether actual or proposed, in which that public body is concerned.
The penalty is imprisonment for 10 years or a fine.
It shall be an offence
any advantage as an inducement to or reward for doing, or not doing, or for having done or not done, any act in relation to the affairs or business of the agent’s principal or for showing, or not showing, favour or disfavour to any person in relation to the affairs or business of the agent’s principal.
Fine and imprisonment 10 years.
It is immaterial if:-
Offence of bribing another person- Section One
(1)A person (“P”) is guilty of an offence if either of the following cases applies.
(2) Case 1 is where:-
(a) P offers, promises or gives a financial or other advantage to another person, and
(b) P intends the advantage-
(i) to induce a person to perform improperly a relevant function or activity, or
(ii) to reward a person for the improper performance of such a function or activity.
(3)Case 2 is where:-
(a) P offers, promises or gives a financial or other advantage to another person; and
(b)P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity.
Offences relating to being bribed – Section Two
(1)A person (‘R’) is guilty of an offence if any of the following cases applies.
(2) Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person)
(3) Case 4 is where:-
(a) R requests, agrees to receive or accepts a financial or other advantage; and
(b) the request, agreement or acceptance itself constitutes the improper performance by R of a relevant function or activity.
(4) Case 5 is where R requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity.
(5) Case 6 is where, in anticipation or in consequence of R requesting, agreeing to receive or accepting a financial or other advantage, a relevant function or activity is performed improperly:-
(a) by R; or
(b) by another person at R’s request or with R’s assent or acquiescence.
(6) In cases 3 to 6 it does not matter –
(a) whether R requests, agrees to receive or accepts ( or is to request, agree to receive or accept) the advantage directly or through a third party,
(b) whether the advantage is (or is to be) for the benefit of R or another person.
The maximum sentence for these two offences is 10 years imprisonment or a fine.
This Act makes it a specific offence to bribe a foreign official:-
A person who bribes a foreign official (F) is guilty of an offence if P’s intention is to influence F in F’s capacity as a foreign public official.
P must also intend to obtain or retain business, or an advantage in the conduct of business.
“Foreign public officials” is defined as an individual who:-
(a) holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or territory outside the UK ( or any subdivision of such a country or territory)
(b) exercises a public function
(i) for or on behalf of a country or territory outside the UK
(ii) for any public agency or public enterprise of that country or territory
The Jersey Law does not have a separate offence which compares with its UK counterpart, however, it appears that Article 6, (set out above) is able to incorporate foreign officials, because the word “agent” referred to in Article 6 clearly includes a foreign public official. The precise definition of “agent” is set out in Article 2 but it includes public prosecutors, judges, anyone acting on behalf of the public administration, or anyone exercising a public function for another country or territory.
Offences by bodies corporate
It is an offence under both laws for a body corporate to consent to or connive with the commission of an offence in their organisation.
The Jersey Law makes it an offence for a limited liability partnership to do this and the UK Law makes it an offence for a Scottish partnership to do the same.
The Jersey Law makes it an offence for the offence to be attributable to the neglect of a director, manager, secretary or other similar officer of the body corporate or partner of the partnership.
The UK Law states that a relevant commercial organisation ( C ) is guilty of an offence under this section if a person associated with C bribes another person intending:-
(a) to obtain or retain business for C; or
(b) to obtain or retain an advantage in the conduct of business for C
(2) But it is a defence for C to prove that C had in place adequate procedures designed to prevent persons associated with C from undertaking such conduct.
How will these laws be applied?
In terms of the application of these laws in practice, there is little available guidance in Jersey; however the English CPS (Crown Prosecution Service) guidelines appear to suggest that reasonableness is the key.
In terms of hospitality and promotional expenditure, if it is reasonable, proportionate and made in good faith, it is recognised that it is an established and important part of doing business.
It could form the basis of an offence though. There must be an element of improper performance, or, depending on the offence, it would be necessary to show that the provision of hospitality or promotional expenditure was intended to influence the foreign public official. The more lavish the hospitality or expenditure, the greater the inference that it is intended to encourage or reward improper performance or influence an official.
There are, of course, public interest considerations. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution, which outweigh those tending in favour.
Factors tending in favour of prosecution
The code sets out a number of general factors tending in favour of prosecution.
A conviction for bribery is likely to attract a significant sentence.
Offences will often be premeditated and may include an element of corruption of the person bribed.
Offences may be committed in order to facilitate mores serious offending.
Those involved in bribery may be in positions of authority or trust and take advantage of that position.
Factors tending against prosecution
The court is likely to impose a nominal penalty.
The harm can be described as minor and was the result of a serious incident.
There has been a genuinely proactive approach involving self-reporting and remedial action.
In conclusion, it is difficult to know precisely how these laws will be applied because there have been relatively few prosecutions in the UK under this Law, and none in Jersey, at the time of writing. These Laws have been mentioned in cases concerning money-laundering offences, in the sense that the predicate offence has been corruption/bribery based, but the discussion about the application of these laws has been very limited because it was not the main focus of the case. Until we see some prosecutions, we just have to watch this space.
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The information and opinion expressed in this briefing does not purport to be definitive or comprehensive and are not intended to provide professional advice. For specific advice, please contact Parslows Jersey. We are not responsible for, and do not accept any responsibility or liability in connection with, the content of this document or any reliance upon it.