Hardly any need for a guilty mentality

The first clue lies in the mental element that underpins the “business-to-business” crime under Sections 1 and 2. The prosecutor need only prove that the defendant intended some not necessarily monetary advantage to accrue to someone. He/she/it need also only intend to cause the improper performance of a “relevant function”. Section 3(2)(d) says that a relevant function for this purpose is any activity performed by or on behalf of a body of persons whether corporate or not – a very wide definition. Anything to do with business or the person’s employment is obviously included.

The only other condition for “relevance” is that the person in question must be “trusted” or expected to perform it ‘in good faith’ or “impartially”. In using the passive voice without identifying the person doing the trusting, Section 3 ensures that a recipient of bribes can be held to misbehave even if his employer does not expect him to live up to these standards, just as long as someone does.

The only mental element to the crime of bribing in Section 1 is that the briber must think that the person to whom he gives the advantage would be “improperly performing” by accepting it; as we have seen, the bar for this is inconsequential. Section 2 has more to say, this time about a bribed party being charged: in most instances, it does not even matter whether he thinks that the required activity is improper.

Section 7, a corporate offence which also applies to business-to-business crime, goes further because it requires no mental element at all. The company whose officers perform the bribery can be completely oblivious to it and still be liable. Its only defence is the upkeep of good anti-bribery systems in line with the somewhat controversial “guidance” that the Ministry of Justice issued in 2011, under Section 9.

All individuals and companies anywhere in the world can be found guilty of breaking Sections 1, 2 and 7 as long as they or their misdeeds are sufficient well-connected with the UK. The mental element that the SFO needs to prove guilt for these offences is scant and, at times, non-existent. This is not true, however, of Section 6, the purely foreign officials section.