Bribery Act 2010 – (4) What is ‘improper performance’?

In the earlier articles in this series I looked at why businesses need to be ready for the forthcoming introduction of the Bribery Act 2010 and then at the offences relating to offering bribes and taking bribes.

In this article I am going to consider what is meant by ‘improper performance’.  Later articles will consider the liability of commercial organisations for the actions of associated persons, the ‘adequate procedures’ defence, the penalties and what steps businesses should be taking.

We have seen in the earlier articles that the offences in relation to either offering bribes or taking bribes generally involve someone offering a financial or other advantage and someone else improperly performing a relevant function or activity.  We have also seen that there is no statutory definition of ‘financial or other advantage’ and that ‘relevant function or activity’ is defined very widely to include most public, business and employment activities.

There is a statutory definition of ‘improper performance’, although it is questionable whether it adds much to what anyone might think those words would mean.  In the second article in this series we saw that for a relevant function or activity to be regarded as such there had to be an expectation that the activities will be carried out in good faith (Condition A), or impartially (Condition B), or the person performing them is in a position of trust (Condition C).

The definition of ‘improper performance’ is tied to these three conditions.  ‘Improper performance’ is performance which breaches a relevant expectation.  A ‘relevant expectation’ means the expectation mentioned in Conditions A or B above, or (in relation to Condition C) any expectation of the manner in which, or the reasons for which, the function or activity will be performed which arises from the position of trust.

The Act goes on to say that the expectation relates to what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.

Where the performance is not subject to UK law, any local custom or practice is to be disregarded unless it is permitted or required by the written law of the relevant country.  What this means is that if your average UK person would think something improper if it was done in this country, it will be no defence to say that everyone knows that is how business is done in the other country unless such activity is expressly allowed or required in that country.

While on the subject of other countries, the Act will also create a specific offence of bribing foreign public officials.  I am not going to look at this in detail but it essentially involves offering financial or other advantages to foreign public officials in order to influence them in the performance of their public duties.

All businesses, of whatever size, will need to have adequate procedures in place to prevent bribery.  In the next article, we will look in more detail at the offences a business might be guilty of if it fails to put such procedures in place.

Please check back for future articles in this series over the next few weeks or subscribe to either this blog or our twitter feeds for updates.

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