ACCA P1考试：Bribery and Corruption
4.5 UK Bribery Act 2010
Section 7 makes it an offence where a relevant commercial organisation fails to prevent bribery by any associated individual or party (e.g. employee, agent, contractor or subsidiary) whatever the nationality, with the intention of benefitting the organisation (i.e. this is a commercial offence).
A relevant commercial organisation is one which:
is incorporated in the UK, regardless of where it carries out its business (which could be 100% external to the UK); or has business activities in the UK, regardless of where it is incorporated.
A defence against criminal proceedings under Section 7 of the Act can be made if the organisation can demonstrate that it has adequate procedures in place which are designed to prevent those associated with it from offering bribes.*
*Even if adequate controls and procedures are in place, an organisation and its senior managers would be liable if it were proved that senior management intentionally overrode the controls or failed in their duty to maintain such controls (including failure to review and update controls taking into accounting emerging threats and issues).
Illustration 4 Impact on a Foreign Operation
A foreign country, A, operates an international airline, Foreign Air (FA), which is not listed in the UK but provides daily flights to three major airports in the UK. It has various business interests in the UK including booking agents and travel agents, through which it sells holidays.
A manager from country B employed by a subsidiary of FA, which is registered in and operates from country C, was recently required by the management of FA to organise, through the subsidiary, a three-week international holiday package of 5-star accommodation and first-class travel for the foreign minister (and her family) of country C. This was considered to be an appropriate "thank you" for assistance given by the minister in ensuring that FA and its subsidiary were able to continue to operate flights to and from country C. It is a custom in country C to give gifts to business partners on the satisfactory conclusion of all business negotiations.
This action would be in breach of the UK Bribery Act as FA has business interests in the UK, is presumed to have control over its subsidiary and directly benefited from the action taken by that subsidiary and its manager. The "thank you" is clearly significant, directly related to an individual who was able to influence the outcome and would be seen by any reasonable person (in the UK and probably in country C) to be a bribe.
FA would, therefore, face court action in the UK and, depending on the level of fines imposed and its ability to pay, may find a number of its aircraft impounded at UK airports as collateral. In addition, senior managers in FA, their country C subsidiary and the country B manager may be subject to jail terms in the UK (this will depend on extradition treaties between the various countries and the UK) for their failure to prevent bribery.
Section 12 gives a detailed description of the wide territorial (basically world-wide) implications of bribery offences by individuals who have a close connection to the UK.
Close connection means:
any British person in whatever way that status was obtained (e.g. born in the UK through to a British protected person);
anyone (regardless of nationality) who is ordinarily a resident in the UK (usually means they effectively live in the UK, own, have access to or rent property on a long-term basis in the UK or stay in the UK for prolonged periods of time in any one year); or is a body incorporated under UK law (regardless of whether or not it is listed).