Subscribe to RSS Feed Subscribe to RSS My Sister Eileen: Sid Harth Everything you always wanted to know about

my sister Eileen and more Search and Research Whats Hot The Wall Shit Journal and I: Sid Harth End of the World: Sid Harth End of the World: Sid Harth Yah Allah, Oops, Tarantullah: Sid Harth Its the Budget, Stupid: Sid Harth Horseplay in Harappa: Sid Harth Its the Budget, Stupid: Sid Harth Its the Budget, Stupid: Sid Harth Bam, Bam Thank you Mam, Oops, Mr President: Sid Harth Its the Budget, Stupid: Sid Harth Its the Budget, Stupid: Sid Harth Its the Free Trade, Stupid: Stupid: Sid Harth Its the Budget, Stupid: Sid Harth Horseplay in Harappa: Sid Harth End of the World: Sid Harth Tweets End of the World: Sid Harth http://bit.ly/pZeQTb 3 hours ago End of the World: Sid Harth http://bit.ly/plDT97 9 hours ago Yah Allah, Oops, Tarantullah: Sid Harth http://bit.ly/nstl10 10 hours ago It s the Budget, Stupid: Sid Harth http://bit.ly/pJul0D 11 hours ago Horseplay in Harappa: Sid Harth http://bit.ly/po64T4 14 hours ago This attempt to denigrate Rahul Sharma over his testimony to the Supreme Cou rt ordered SIT is reprehensible, to say th http://toi.in/mpgTCZ 14 hours ago It s the Budget, Stupid: Sid Harth http://bit.ly/nYMZ1l 15 hours ago It s the Budget, Stupid: Sid Harth http://bit.ly/qrJ1nW 21 hours ago Bam, Bam Thank you Mam, Oops, Mr President: Sid Harth http://bit.ly/qbLj5c 2 2 hours ago It s the Budget, Stupid: Sid Harth http://bit.ly/rlINeB 1 day ago It s the Budget, Stupid: Sid Harth http://bit.ly/qDVlUn 1 day ago It s the Free Trade, Stupid: Sid Harth http://bit.ly/oM2L17 1 day ago It s the Budget, Stupid: Sid Harth http://bit.ly/rtbbxM 1 day ago Horseplay in Harappa: Sid Harth http://bit.ly/pK442x 1 day ago End of the World: Sid Harth http://bit.ly/n6qyK3 1 day ago End of the World: Sid Harth http://bit.ly/nxCipZ 1 day ago End of the World: Sid Harth http://bit.ly/qTIZ8g 1 day ago End of the World: Sid Harth http://bit.ly/ofjr74 1 day ago Economic Progress? Olympia, you must be kidding. http://bit.ly/mYI3bR 2 days ago summa cum laude sum http://bit.ly/oShwJv 2 days ago The Wall Shit Journal and I: Sid Harth August 12, 2011 Search The Wall Shit Journal and I: Sid Harth cogito ergo sum www.sidileak.us/2011/06/the-wall-shit.html Cached Jun 11, 2011 Free Speech, American Ishtail: Sid Harth The Wall Shit Journal and I: Sid Harth Posted on 11/06/2011 by Sid Harth Saturday, June 11, You You +1d this

 The Wall Shit Journal and I: Sid Harth cogito ergo sum www.sidileak.us/2011//the-wall-shit-journal-and-i-sid-harth-4.htm Cached Jun 10, 2011 Cogito Ergo Sum Friday, June 10, 2011 The wall Shit Journal Show more results from sidileak.us The Wall Shit Journal and I: Sid Harth bakulaji.typepad.com/the_wall_shit_journal_and/ Cached Jul 18, 2011 The Wall Shit bscribe The Wall Shit Journal The Wall Shit Journal and I: cogitoergosumusa.com/?p=54 Journal and I: Sid Harth Home Archives Profile Su and I:. Sid Harth USA: News, Views and Reviews Cached

Jun 7, 2011 Online Journal E-Mail Center June 7, 2011 4:41 p.m. EDT See all You You +1d this Too Soon? Cuomo, Clinton Top 2016 Poll PolitickerNY www.politickerny.com//too-soon-cuomo-clinton-top-2016-poll/ Cached Jul 19, 2011 http://sidileak.com/2011/07/19/the-wall-shit-journal-and-i-sidharth-31/ The Wall Shit Journal and I: Sid Harth News, Views and Reviews: Sid Harth (elcidharth) on Twitter twitter.com/elcidharth Cached Baba Stealth Missile, Oops, missaL Exploded: Sid Harth http://bit.ly/lQpcP3 ab out 3 hours ago via TypePad. The Wall Shit Journal and I: Sid Harth You You +1d this The Wall Shit Journal and I: Sid Harth COGITO ERGO SUM, and I www.cogitoergosumonline.com/?p=38 Cached Jun 9, 2011 Haridwar Highway Man, Oops, Baba: Sid Harth The Wall Shit Journa l and I: Sid Harth Posted on 08/06/2011 by Sid Harth Log In You You +1d this The Wall Shit Journal and I: Sid Harth Global Village: Sid Harth www.cogitoergosummedia.com/?p=127 Cached Jul 18, 2011 WSJ Facebook Twitter MarketWatch MarketWatch Barrons Barrons Smar tMoney SmartMoney AllThingsDigital Al Cogito Ergo Sum: The Wall Shit Journal and I: Sid Harth gosumercogito.blogspot.com//wall-shit-journal-and-i-sid-harth_07 Cached Jun 7, 2011 Regular posts from Wall Street Journal and Dow Jones Newswires r eporters around the country provide a unique take on the main stories in the You You +1d this The Wall Shit Journal and I: Sid Harth Sid Harth Sid Harth www.sidharthsidharth.com/?p=347 Cached Jul 8, 2011 The Wall Shit Journal and I: Sid Harth Friday, July 8, 2011 Yah Allah, Oops, Tarantullah: Sid Harth 10 1 Next 2 3 4 5 6 7 8 9

View customizations Search Help Give us feedback Google Home Advertising Programs Business Solutions Privacy About Google Reuters Edition: U.S.

My Account My Cart Portfolio Logout MediaFile Where media and technology meet See all analysis and opinion The case against the bribery case against Murdoch Jul 22, 2011 10:03 EDT foreign corrupt practices act News Corp Rupert Murdoch

By James Ledbetter The opinions expressed are his own. Ever since reports surfaced that executives at News of the World paid bribes to members of the UKs Metropolitan Police, there have been lots of people in the Uni ted States who would like to see News Corp and/or its top executives prosecuted under American laws. News Corp is an American company, goes the argument, and pa ying bribes abroad is explicitly prohibited by the Foreign Corrupt Practices Act (FCPA). Those observations are true as far as they go, and they appear bolstered by repo rts Friday morning that the Justice Department is preparing subpoenas as part of a preliminary investigation into News Corp. But the argument that a successful U.S.-based bribery case can be built against Murdochs company involves at least a s much wishful thinking as it does legal acumen. There may be some effective way s to use the FCPA against News Corp, but nailing News Corp executives in the U.S . for police bribes in the UK requires an enormous, unprecedented stretch of the FCPA, and one which seems unlikely to stand up in court. The FCPA was a groundbreaking piece of anti-corruption legislation when Jimmy Ca rter signed it into law in 1977. But even its most passionate fans would admit t hat a) its enforcement over the decades has been spotty, and b) no one involved in the creation of the FCPA ever envisioned it being used to punish checkbook jo urnalism, legal or illegal. Indeed, when the Securities and Exchange Commission (SEC) originally issued a re port in 1976 describing the types of illegal payments U.S. corporate entities we re making at the time, the four categories it outlined didnt remotely involve pay ing for information of any kind. Instead, the FCPA was designed to prohibit the classic kickback scenario: Company A pays Foreign Official B to receive Contract Cor, in the words of the statute, to assist in obtaining or retaining business. Fo llowing reports of the alleged News Corp bribery, several lawyers have been quot ed in the press saying that the government agencies responsible for enforcing th e FCPA have in recent years become more aggressive in how they interpret that ph rase. Thats true. And the vagaries of FCPA enforcementdifferent courts have different st andards, cases get settled before decisions are reachedmake it impossible for eve n experts to know conclusively how a zealous SEC or Justice Department official might define obtaining or retaining business. Still, a review of dozens of such ca ses produces not a single instance in which the bribe in question resembles a ne wspaper paying police for tips. Even the most expansive enforcement efforts have uniformly been about the mechanics of getting commerce done, what legal experts call a business nexus: customs duties; tax payments; securing government licenses and permits; obtaining storage space in government-controlled facilities; paten t applications; etc.

As offensive and explicitly illegal as paying police for information might be, i t is a huge stretch to say that it is part of the business nexus of a multinatio nal corporation. Assume for the sake of argument that News of the World did spen d 100,000 pounds or more paying the police for story tips, and that the paper re aped some modest circulation benefit from the scoops it published. That is still worlds away from, say, paying a Nigerian tax official to look the other way on an audit. The police would have to be proven to have knowingly taken the money i n order to further News Corps business in the UK. In fact, they were in no positi on to influence whether News of the World did or didnt sell copies on any given w eek; nor would any of the revenue involved been dependent on government action, as it would be, say, in a customs duty bribe. Without a government quo for News Corps 100,000 quid, without even the suggestion of a governmental action that mig ht make it easier or cheaper for News Corp to do business, there is no solid bas is for a case. Incidentally, its far from clear that the more recent and aggressive FCPA cases t hemselves pass judicial muster. Much of the contemporary debate around FCPA invo lves a case that began in 2001, called U.S. v Kay. In it, two officials of a Hou ston-based company were accused of deliberately understating the amount of rice they had exported to Haiti in order to reduce their tax bill. Although the defen dants were eventually found guilty, the Fifth Circuit appeals courts much scrutin ized decision clearly stated that simply because a bribe might have helped a com pany economically, that doesnt mean it violates the FCPA. Although we recognize t hat lowering tax and customs payments presumptively increases a companys profit m argin by reducing its cost of doing business, it does not follow, ipso facto, as the government contends that such a result satisfies the statutory business nex us element, wrote the Fifth Circuit. Finally, there is a blunter, less politically correct reason why a FCPA case is unlikely. Enforcement of the FCPA since its inception has been almost comically arbitrary; the title of a detailed law review article by an influential professo r is the faade of FCPA enforcement. In 2003 and 2004, the government initiated a me ager total of 6 FCPA cases each year. In 2007, the government initiated 38 cases . Obviously, there was not a sixfold increase in bribery activity in the interve ning years; the government chooses these cases very selectively. Go down the lis t of where cases are initiated and youll see a patternChina; Indonesia; Pakistan; Iraq; Nigeria; Malaysia; Venezuela; Honduras; Yemen, etc. Very rarely does any O ECD or G20 country show up. Rightly or wrongly, the U.S. government obviously ch ooses to enforce the FCPA in places where it perceives that local rule of law is insufficient. By contrast, if News Corp executives broke bribery laws in the UK , it is very reasonable to assume that British justice is up to the task of pros ecuting them. Of course, if Americans really want our laws to prohibit police bribes overseas, we can change the FCPA statute. But as a rule, you dont want to see it stretched to cover behavior outside its intended scope. There, may, however, be other use s of the FCPA in this case, which will be the subject of another column. Previous Post Next Post Comments 12 comments so far Jul 22, 2011 12:09 pm EDT RSS Comments RSS

Just because a law is intended for one thing at the time it is written means not hing.

Consider the RICO Act targeted at mafiosi who could only be convicted on conspir acy charges. Next thing you know, its being used to bring down mayors, county sup ervisors and even US Senatorsnone of whom ever dream of passing laws that could b e used against the Senate. Posted by Banj0man Report as abusive Jul 22, 2011 3:20 pm EDT You do make excellent points, but being phone hacking occurred on American soil (the Jude law case and possibly the 9/11 victims) should they not at least attem pt to build a case? It is likely this goes on under the table at all the tabloids and elsewhere, but only NWI was caught. Investigations in the states may deter the practice and ev en draw out a whistle blower (if they are sure Sean Hoare wasnt murdered of cours e) to bring it out in the open in the USA as well. Posted by hsvkitty Report as abusive Jul 22, 2011 4:12 pm EDT Banj0man: I agree with you to a point. But many people, including myself, believ e that the RICO statutes have been stretched beyond recognition. Does it make se nse to use that as a rationale to stretch another law into a similarly tortured state? Posted by jledbet Report as abusive Jul 22, 2011 8:08 pm EDT Just take away their public broadcasting air rights. The US people own the airwa ves not Murdoch. Shut him down and shut him up. Posted by seattlesh Report as abusive Jul 22, 2011 9:24 pm EDT Rupert doesnt employ journalists, he employs paparazzi. Posted by borisjimbo Report as abusive Jul 23, 2011 11:40 pm EDT We pride ourselves on laws. We dont have the worlds largest prison population for nothing. If the Government looks hard enough, certainly they have a cell for Mr. Murdoch somewhere. Its sad, but true! As a citizen you must know every single law too. All ten gazillion of them. Ignorance is no excuse and you will go to jail without passing go. Posted by schmetterling Report as abusive Jul 24, 2011 1:47 am EDT Mr. Ledbetter, You state that the bribery of the police in England is merely a case of checkbook journalism used in the pursuit of good stories. I find it incredible that you ar e unaware of the extent to which Scotland Yard was corrupted by these bribes. I am not a journalist. Im an average shmoe who spent all day moving boxes and cle aning my house. I read your article, and then turned to a vastly technical resea rch tool known to only a select few as Google and performed a search and within seco nds was able to find a report in an obscure publication named The New York Times w hich provided me with a rather more thorough and insidious description of what o ccurred than even your worst-for the sake of argument-case scenario.

According to the Times, a treasure-trove of evidence, including 11,000 pages of han dwritten notes listing nearly 4,000 celebrities, politicians, sports stars, poli ce officials and crime victims whose phones may have been hacked by The News of the World lay undisturbed and peaceful in six large plastic bags. According to former and current police officials, from August 2006, when the items were seized, until the autumn of 2010, no one at the Metropolitan Police Service , commonly referred to as Scotland Yard, bothered to sort through all the materi al For nearly four years they lay piled in a Scotland Yard evidence room, six overst uffed plastic bags gathering dust and little else. During that same time, senior Scotland Yard officials assured Parliament, judges, lawyers, potential hacking victims, the news media and the public that there wa s NO EVIDENCE OF WIDESPREAD HACKING BY THE TABLOID. (emphasis added) They steadfa stly maintained that their original inquiry, which led to the conviction of ONE reporter and ONE private investigator, had put an end to what they called an iso lated incident. At best, former Scotland Yard senior officers acknowledged in interviews, the pol ice have been lazy, incompetent and too cozy with the people they should have re garded as suspects. At worst, they said, some officers might be guilty of crimes themselves. Even on the surface it looks very bad Neil Wallis..a former top editor at The News of the World at the time of the hack ing ..went on to work as a media strategist for Scotland Yard[and] was reporting back to News International while he was working for the police on the hacking ca se It goes on and on, the police commissioner met for meals 18 times with company ex ecutives and editors during the investigation. Its one thing to decide not to investigate, said Jeremy Reed, one of the lawyers wh o represents numerous phone-hacking victims. But its quite another thing not to te ll the victims. Thats just mind-blowing. Apparently, Mr. Ledbetter, your mind is safely un-blown as you somehow are still characterizing the scandal as mere checkbook journalism. Heres why we should prosecute Murdoch and his News Corp: This American citizen le d an organization which embarked upon a massive and successful effort to suborn the premier law enforcement agency of Americas single most important ally. This A merican citizen has done incalculable harm to the government of Great Britain. D ont think so? Maybe my opinion and the opinion of the New York Times isnt good eno ugh for you. Thats fine. Why not ask a man whose lifes work was the pursuit of justice while employed at t he Metropolitan Police Service: Its embarrassing, and its tragic, said a retired Scotland Yard veteran. This has badl y damaged the reputation of a really good investigative organization. And there is a major crisis now in the leadership of the Yard. Seems fairly more serious than your breezy characterization now, doesnt it, Mr. L edbetter? And we havent even begun to discuss the involvement of the sitting Prim e Minister of Americas leading ally, which would take up far more space. Mr. Ledbetter, what I would like to know is, were you just unaware of all these

facts, or are you also on Mr. Murdochs payroll? How else could you, a journalist, possibly miss the significance of this scandal when the information is so very blatantly available and obvious that even an ignorant average shmoe such as myse lf can easily find it? Tell me what am I missing here? I didnt want to write this post. I take no pleasure in attacking you. Im not trying to be a troll. I just c ant escape the implication of your article. Im afraid the options are that you are either blindly incompetent, or insidiously corrupt. Prove me wrong. Please. Posted by BajaArizona Report as abusive Jul 24, 2011 5:03 am EDT My post is pending approval, yet a later post on another article has already bee n approved. I made what I thought were sharp yet cogent criticisms of the article. My main p oint was that calling the actions of Murdochs organization checkbook journalism in pursuit of scoops ignores the evidence that Murdochs employees actively suborned Scotland Yard to halt an investigation into their illegal hacking. This is far w orse than paying for juicy information. This is corruption of the premier law en forcement of Americas #1 ally, and a much more serious crime which is indeed wort h prosecuting. I found the writers ignorance of the facts to be deeply troubling, and I didnt hold my rhetorical fire. Yet I was honest and my attack on his integ rity although severe was backed by quoted research and was not at all ad hominem . Withholding my post because I raise very real questions about the writers motives is not in keeping with a fair discussion. I hope to see it appear soon. Posted by BajaArizona Report as abusive Jul 25, 2011 1:37 am EDT Murdochs mouthpiece, The Wall Street Journal, had a nice big feature piece about how federal law prosecutions have gotten way out of hand. I wonder what the moti vation for that article is? Posted by BajaArizona Report as abusive Jul 25, 2011 4:23 am EDT Murdoch is rich. Nuff said. There is no a chance in hell hell ever be charged with a crime, let alone to time. The same applies to his son. In the U.S., MONEY and Power is the key to everything and the Murdochs have both. The U.S. is now numb er 10 on the corrupt government list, so dont expect anything but lots of hot air . Posted by robert1234 Report as abusive Jul 25, 2011 9:37 am EDT To BajaArizona: You misread this column if you think it attempts to reduce the e ntire News of the World scandal to checkbook journalism. Obviously the widesprea d hacking of phones is reprehensible, and will be dealt with using whatever laws apply. This column refers only to the *bribery* allegations of the scandal, tho se to which the FCPA arguably does or does not apply. Posted by jledbet Report as abusive Jul 25, 2011 9:42 am EDT Also to BajaArizona: If you click on the first link in my column, youll get to th e original Guardian story, which said that all of the bribes they were reporting

on took place in 2003. So they could not be part of any effort to suppress an i nvestigation of things that took place after 2006. I agree, though, that if paym ents to police were used to thwart an investigation at any time, that would come closer to the definition of bribes that are covered by the FCPA. Posted by jledbet Report as abusive Author Profile James Ledbetter James Ledbetter is the op-ed editor of Reuters. He is the author of the new book Unwarranted Influence: Dwight D. Eisenhower and the Military-Industrial Complex, published in January 2011. View Profile More Technology News Nvidia shares jump on strong Q3 revenue forecast German court sets Samsung, Apple hearing for Aug 25 Google and Facebook face-off in social games Zynga draws fewer paid players than expected Renren posts small Q2 profit; Q3 view drags down stock Tag Cloud ABC Advertising Amazon Android AOL Apple Apple Inc AT&T Blackberry cbs CES C omcast Facebook Fox future of newspapers Google Internet iPad iPhone media merge rs Microsoft music myspace NBC NBC Universal News Corp newspapers New York Times Nokia privacy Rupert Murdoch Sony Steve Jobs Sun Valley technology television T he New York Times Time Warner Twitter Verizon Viacom video games Yahoo youtube Archives Recent Posts Tech wrap: Clash of tech titans looming? Tech wrap: Cisco beats low bar Facebook creates mobile messaging app Tech wrap: A trillion-dollar Apple? Please lets not call these the BlackBerry riots Edition: U.S. Back to top Reuters.com Business Markets World Politics Technology Opinion Money Pictures Videos Site Index Mobile Legal Bankruptcy Law California Legal New York Legal Securities Law Support & Contact

Contact Us Advertise With Us Account Information My Account My Cart Portfolio Logout Our Flagship financial information platform incorporating Reuters Insider An ultra-low latency infrastructure for electric trading and data distribution A connected approach to governance, risk and compliance Our next generation legal research platform Our global tax workstation Thomsonreuters.com About Thomson Reuters Investor Relations Careers Contact Us Thomson Reuters is the worlds largest international multimedia news agency, provi ding investing news, world news, business news, technology news, headline news, small business news, news alerts, personal finance, stock market, and mutual fun ds information available on Reuters.com, video, mobile, and interactive televisi on platforms. Thomson Reuters journalists are subject to an Editorial Handbook w hich requires fair presentation and disclosure of relevant interests. NYSE and AMEX quotes delayed by at least 20 minutes. Nasdaq delayed by at least 15 minutes. For a complete list of exchanges and delays, please click here.

Jim Slavin SAI Global Compliance Jim Slavin is Senior Director, Advisory Services at SAI Gl obal Compliance and specializes in providing strategic counsel and thought leade rship on bribery and corruption risk management issues, particularly those posed by the FCPA and the UK Bribery Act 2010. Mr. Slavin also advises clients on bes t practices for compliance issue management and performance metrics programs, in cluding hotline and case management. Previously, he was Director of Client Servi ces at CT TyMetrix, a division of Wolters Kluwer, where he worked closely with i nsurance and corporate law department senior management to improve suit disposit ion strategies and legal spend management by leveraging outside counsel invoice metrics. Mr. Slavin is a member of the Connecticut bar and is a Certified Compli ance & Ethics Professional. Mr. Slavins articles have appeared in Compliance Week and Australias Keeping Good Companies. Jim Slavins Recent Entries The Ironies and Uncertainties Surrounding a Bribery Action against News Corp oration Aug 02, 2011 The Basics of FCPA Compliance Jun 27, 2011 Does the Final version of the UKBA Guidance Dilute the Law? Jun 15, 2011 Incidents of Bribery: To Disclose or Not to Disclose? May 05, 2011

UK Bribery Act Final Guidance some things old, some things new Mar 31, 2011 Learn more about other SAI Global advisors SAI Global Compliance previous next The Ironies and Uncertainties Surrounding a Bribery Action against News Corporat ion by Jim Slavin, Aug 02, 2011 The long awaited, much anticipated UK Bribery Act finally went into effect on Ju ly 1, 2011. Not a week later, the UKs most publicized bribery scandal in recent memory hit the presses in spectacular fashion and sent shockwaves around the wor ld. The News Corporation case seems to have all the trappings of a juicy, madefor-TV bribery trial. It involves an unpopular, billionaire media mogul; the br ibery of police officials; wanton mistreatment of the families of war heroes and murder victims; the subpoena and arrest of senior executives; the resignation o f other disgraced officials and executives; and a public outcry for punishment f rom both sides of the Atlantic. The irony of it all? The UKs new Bribery Act 201 0 does not apply to this case and successfully prosecuting the alleged wrongdoer s under the FCPA might be an uphill battle. Section 19 of the Bribery Act provides that the law does not apply to offences t hat occurred before the law went into force on July 1, 2011. Despite the fact th at News Corp. is an American corporation and the case involves the bribery of fo reign officials, those advocating an FCPA prosecution may also end up disappoint ed. While an FCPA inquiry is now underway, Department of Justice prosecutors wi ll face a number of hurdles if they decide to enforce the FCPA against News Corp oration. Among others (such as News Corp.s attorney and former DOJ Fraud Section deputy chief Mark Mendelsohn), these would include: Business Nexus: The facts of this case are quite different from those of traditi onal bribery cases, which include illicit payments to government officials in re turn for contracts, tax breaks, or other tangible business advantages. Successfu lly arguing that payments to police officers for information constitutes a simil ar business nexus may be a stretch. Legislative Intent- Congress passed the FCPA to combat the payment of foreign of ficials by corporations seeking to gain an unfair business advantage. News Corp .s alleged actions were distasteful and illegal, but did they threaten the integr ity of the free market that the FCPA was intended to protect? Foreign Actors- As far as I can tell at this point, there are no American actors or victims in this case. It involves the bribery of British police officers in Britain by British citizens seeking information about other British citizens. The knee-jerk reaction of the American public (and members of Congress) has been to invoke the full fury of the DOJ upon these alleged transgressors. Does that action, after careful consideration, constitute sound prosecutorial discretion given the facts as currently understood? Or, are our limited resources better ap plied towards prosecuting crimes that more detrimentally impact the American pub lic or economy? FCPA Prosecution History- If history is any guide, Rupert Murdoch and his collea gues might breathe a sigh of relief. In the past decade, the DOJ has rarely chos en to enforce the FCPA for incidents occurring in any OECD-signatory countries. Given the very UK-centric facts of this case, and the UKs capability of handling

this prosecution themselves, it will not be surprising if the DOJ makes another non-prosecution decision here. There are a couple additional ironies surrounding this incident: First, the UK might just have to dust off the very anti-bribery laws that the new Act replaces in order to prosecute News Corp. While we have all been anticipating a forthco ming high-profile prosecution by the Serious Fraud Office, that would be a most unexpected twist. Secondly, Rupert Murdoch might need to worry about the Aussies . Why? News Corp. was incorporated in Australia until 2004 when it became a Del aware corporation. Given the timing of the alleged bribes, and their jurisdicti on over News Corp. at the time, the Australians just might be the ones to put th is trophy above the mantle. Have a comment? Name (required) Mail (will not be published) (required) Website 2011 SAI Global Ltd. The opinions expressed herein are those of the authors and are not the opinions of SAI Global. Nothing herein should be relied upon as lega l advice as articles are meant to identify issues and stimulate thinking. Reader s should seek their own legal counsel in dealing with any legal issues identifie d in any articles in this publication.Viewpoint is best viewed in the latest ver sions of Internet Explorer or Firefox.BRIBERY ACT 2010: JOINT PROSECUTION GUIDAN CE OF THE DIRECTOR OF THE SERIOUS FRAUD OFFICE AND THE DIRECTOR OF PUBLIC PROSEC UTIONS Contents Introduction The Act in its wider context The legal framework Transitional provisions The offences and application of the Code for Crown Prosecutors Scope of the Act General approach to bribery prosecutions Key terms used in the Act Offers and requests Financial or other advantage Improper performance Associated person Section 1: Offences of bribing another person Section 2: Offences relating to being bribed Section 6: Bribery of foreign public officials Facilitation payments Hospitality and promotional expenditure Section 7: Failure of commercial organisations to prevent bribery The defence of adequate procedures Section 9 Guidance Obtaining the consent of the DPP or Director SFO 1 Introduction The Bribery Act 2010 (the Act) will come into force on a day to be notified by the Secretary of State for Justice. The Act applies to the whole of the UK and prov ides for wide extra-territorial jurisdiction to deal with bribery committed outs ide the UK. In England and Wales, proceedings for offences under the Act require the persona l consent of the Director of Public Prosecutions or the Director of the Serious Fraud Office. They will make their decisions in accordance with the Code for Cro wn Prosecutors (The Code) applying the two stage test of whether there is sufficie nt evidence to provide a realistic prospect of conviction and, if so, whether a prosecution is in the public interest. The purpose of this guidance is to set out the Directors approach to prosecutoria

l decision-making in respect of offences under the Act. The guidance is not inte nded to be exhaustive and prosecutors should be mindful of the wide range of cir cumstances and culpability which may arise in any particular case. This guidance is subject to the Code for Crown Prosecutors and when considering corporate prosecutions, it should be read in conjunction with the Guidance on Co rporate Prosecutions, which sets out the approach to the prosecution in England and Wales of corporate offenders. Scotland and Northern Ireland are separate legal jurisdictions and this guidance therefore does not apply to decisions about prosecutions in those jurisdictions . However, there has been liaison with the Lord Advocate and the Director of Pub lic Prosecutions for Northern Ireland during the development of this guidance. The Act in its wider context In his foreword to the 2004 United Nations Convention against Corruption (UNCAC) the then UN Secretary General (Kofi Annan) described the serious effects of cor ruption: Corruption is an insidious plague that has a wide range of corrosive effects on s ocieties. It undermines democracy and the rule of law, leads to violations of hu man rights, distorts markets, erodes the quality of life and allows organised cr ime, terrorism and other threats to human security to flourish Corruption is a k ey element in economic under-performance and a major obstacle to poverty allevia tion and development. The UK is a signatory to a number of international anti-corruption instruments i ncluding the UN Convention against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials (1997) and the Council of Europe Criminal La w Convention on Corruption (1998) and additional Protocol (2005). 2 The Act reflects the UKs continued commitment to combat bribery and provides a mo dern, comprehensive scheme of bribery offences. The Act covers all forms of brib ery but there is a clear focus on commercial bribery, evidenced by the fact that two of its four offences are business related. The Government intends that over time the Act will contribute to international and national efforts towards ensu ring a shift away from a culture of bribery that may persist in certain sectors or markets and help ensure high ethical standards in international business tran sactions. The Serious Fraud Office is the lead agency in England and Wales for investigati ng (jointly with the police in some cases) and prosecuting cases of overseas cor ruption. The SFO promotes active engagement with businesses and self-reporting by companies (see Approach of the SFO to dealing with overseas corruption). The Cro wn Prosecution Service also prosecutes bribery offences investigated by the poli ce, committed either overseas or in England and Wales. The statutory adequate procedures defence to a failure of commercial organisations to prevent bribery (section 7) encourages such bodies to put procedures in plac e to prevent bribery by persons associated with them. The Act is not intended to penalise ethically run companies that encounter an isolated incident of bribery . Section 7 and, to a degree, section 6 (bribery of foreign public officials) ar e designed to balance corporate responsibility for ensuring ethical conduct in t he modern international business environment with the public interest in prosecu ting where appropriate. The legal framework The Bribery Act 2010 received Royal Assent on 8 April 2010. A full copy of the A ct and its Explanatory Notes can be accessed at: www.legislation.gov.uk In summary, the Act: provides a revised framework to combat bribery in the public or private sectors, removing the need to prove acts were done corruptly or dishonestly; abolishes the offences of bribery at common law and the statutory offences in th e Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906 (s17 and Schedule 2);

creates two general offences of bribing another person (active bribery) (s1) and b eing bribed (passive bribery) (s2); creates a discrete offence of bribery of a foreign public official (s6); creates a new offence of failure of commercial organisations to prevent bribery by persons associated with them (s7); requires the Secretary of State to publish guidance about procedures that releva nt commercial organisations can put in place to prevent bribery by persons assoc iated with them (s9); replaces the need for Attorney Generals consent (for the statutory offences aboli shed) with the requirement for the consent of the Director 3 of the relevant prosecuting authority (for the new offences under the Act) (s10) ; provides a maximum penalty of 10 years imprisonment or an unlimited fine for all the offences for individuals, and an unlimited fine only for commercial organisa tions (s11); provides jurisdiction to prosecute bribery committed abroad by any person (indiv idual or corporate) who has a close connection with the UK (s12); provides a limited defence for certain action taken by an intelligence service o r by the armed forces (s13); provides that senior officers of a body corporate may be prosecuted if an offenc e is proved to have been committed by a corporate body with their consent or con nivance (s14); applies equally to individuals in the public service of the Crown as it applies to other individuals (s16) but not to Crown bodies. Transitional provisions Prosecutors should note that the Act does not affect any liability, investigatio n, legal proceeding or penalty in respect of the common law offence of bribery o r the statutory offences under the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906 committed wholly or partly before the comm encement of the Act (s19). The offences and application of the Code for Crown Prosecutors Scope of the Act The Act takes a robust approach to tackling commercial bribery, which is one of its principal objectives. The offences are not, however, limited to commercial b ribery. There may be many examples outside the commercial sphere where individua ls attempt to influence the application of rules, regulations and normal procedu res. Examples would include attempts to influence decisions by local authorities , regulatory bodies or elected representatives on matters such as planning conse nt, school admission procedures or driving tests. General approach to bribery prosecutions Bribery is a serious offence. There is an inherent public interest in bribery be ing prosecuted in order to give practical effect to Parliaments criminalisation o f such behaviour. As with other criminal offences, however, prosecutors will mak e their decisions in accordance with the Full Code Test as set out in the Code f or Crown Prosecutors. It has two stages: (i) the evidential stage; and (ii) the public interest stage. The evidential stage must be considered before the public interest stage. 4 A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. Where there is sufficient evidence to justify a

prosecution, prosecutors must always go on to consider whether a prosecution is required in the public interest. Assessing the public interest is not simply a m atter of adding up the number of factors on each side and seeing which side has the greater number. The absence of a factor does not necessarily mean that it sh ould be taken as a factor tending in the opposite direction. Each case will have to be rigorously considered on its own facts and merits in accordance with the Code. Prosecutors dealing with bribery cases are reminded of the UKs commitment to abid e by Article 5 of the OECD Convention on Combating Bribery of Foreign Public Off icials in International Business Transactions: Investigation and prosecution of the bribery of a foreign public official shall n ot be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved. Key terms used in the Act Offers and requests The Act uses everyday language of offering, promising or giving (active bribery), requesting, agreeing to receive or accepting an advantage (passive bribery). This language is wide enough to include cases in which an offer, promise or requ est can only be inferred from the circumstances. The Law Commission used the exa mple of an interview held over an open briefcase full of money that could be see n as an implied offer. It will be a matter for the tribunal of fact to decide wh ether such an inference can be drawn from the evidence in each case. It is also clear that, except where the allegation is that an advantage was give n or received, there is no need for a transaction to have been completed. The Ac t focuses on conduct not results. Financial or other advantage All the offences under the Act refer either directly or indirectly to a financial or other advantage. The Act does not define the term. It is left to be determine d as a matter of common sense by the tribunal of fact. Prosecutors should therefore approach prosecutions under the Act on the basis th at advantage should be understood in its normal, everyday meaning. 5 Improper performance The concept of improper performance (section 4) is central to the general briber y offences and also indirectly to the offence of failure of commercial organisat ions to prevent bribery, since an offence under section 7 requires a general bri bery offence to have been committed. Improper performance involves a breach of an expectation of good faith, impartialit y or trust (section 3(3) to (5)) in respect of the function or activity carried out . The test of what is expected is a test of what a reasonable person in the Unit ed Kingdom would expect in relation to the performance of the type of function o r activity concerned (section 5(1)). The Law Commission (Reforming Bribery, Law Comm No 313) was confident of the jur ys ability to apply this test on the basis of the ordinary meaning of the words r ather than as something that needed to be defined in the Act: the expectation in question is that which would be had, in the circumstances by pe ople of moral integrity it will be for the tribunal of fact to decide what that expectation amounted to, in the circumstances (paragraph 3.176). Associated person A commercial organisation (C) can be liable only for bribes by an associated person (A) as defined in section 8. Whether A is associated with C is determined by the nature of what is done (disr egarding any bribe under consideration) rather than the capacity in which it is done. It is necessary to take into account all the relevant circumstances, not j ust the nature of the relationship. Services can be performed by one legal perso n on behalf of another legal person. A may therefore, for example, be the commercial organisations employee, agent or subsidiary of the organisation. Where A is an employee it is presumed that A is performing services for or on behalf of C unless the contrary is shown.

Section 1: Offences of bribing another person The legal elements The ways in which the offence of bribing another person can be committed are con tained in two Cases set out in section 1(2) and 1(3) of the Act. The necessary con duct element is when a person offers, promises or gives a financial or other advant age, either directly or through a third party. The offence also requires a wrongfu lness element. 6 In Case 1, the wrongfulness element is committed where the advantage is intended to induce (or be a reward for) improper performance of a relevant function or a ctivity. In Case 2, the wrongfulness element is committed where the person knows or belie ves that the acceptance of the advantage offered, promised or given in itself co nstitutes the improper performance of a relevant function or activity. Prosecutors will need to consider any direct evidence (documentary or otherwise) there may be of actual intention (Case 1) or knowledge or belief (Case 2) as we ll as whether they can be inferred from the circumstances including the value of the advantage. Prosecutors should draft separate charges or counts based on Cases 1 and 2 to av oid duplicity, as their wrongfulness elements are different; and should also mak e it clear if charges or counts are alternatives. Public Interest Considerations A prosecution will usually take place unless the prosecutor is sure that there a re public interest factors tending against prosecution which outweigh those tend ing in favour. Factors tending in favour of prosecution: The Code sets out a number of general factors tending in favour of prosecution. When applied in the context of bribery offences, the following may be particular ly relevant: A conviction for bribery is likely to attract a significant sentence (Code 4.16a ); Offences will often be premeditated and may include an element of corruption of the person bribed (Code 4.16e and k); Offences may be committed in order to facilitate more serious offending (4.16i); Those involved in bribery may be in positions of authority or trust and take adv antage of that position (Code 4.16n). Factors tending against prosecution: The factors tending against prosecution may include cases where: The court is likely to impose only a nominal penalty (Code 4.17a); The harm can be described as minor and was the result of a single incident (Code 4.17e); There has been a genuinely proactive approach involving self-reporting and remed ial action (additional factor (a) in the Guidance on Corporate Prosecutions). 7 Section 2: Offences relating to being bribed The legal elements Section 2 provides a number of ways in which the offence of being bribed can be committed and distinguishes four Cases, namely Case 3 to Case 6 as set out in sect ion 2 (2) to (5). The Explanatory Notes to the Act explain in more detail how th e offence may be committed. Section 2 uses the same concepts as in section 1 of f inancial or other advantage; relevant function or activity; and improper performance. Prosecutors should draft separate charges or counts based on Cases 3 to 6 to avo id duplicity, as their wrongfulness elements are different; and should also make

it clear if charges or counts are alternatives. Public Interest Considerations The factors tending in favour of and against prosecution for section 1 (see abov e) are equally applicable to the offence under section 2. Section 6: Bribery of foreign public officials The legal elements Section 6 creates a discrete offence of bribery of a foreign public official (as defined in section 6(5)). The offence is committed where a person offers, promises or gives a financial or other advantage to a foreign public official with the intention of influencing the official in the performance of his or her official functions. That person must also intend to obtain or retain business or an advantage in the conduct of business. The official must be neither permitted nor required by the applicable written law (section 6(7)) to be influenced by the advantage). Bribery of foreign public officials may also be prosecuted, in appropriate cases , under section 1, making use of the extended extra-territorial jurisdiction. Th is may be the case, for example, if it is difficult to prove that the person bri bed is a foreign public official. It should be noted, however, that under sectio n 1 it will be necessary to prove the improper performance element. Specific issues under section 6 (note they may also apply to section 1 offences) Facilitation payments Facilitation payments are unofficial payments made to public officials in order to secure or expedite the performance of a routine or necessary action. They 8 are sometimes referred to as speed or grease payments. The payer of the facilitation payment usually already has a legal or other entitlement to the relevant action . There is no exemption in respect of facilitation payments. They were illegal und er the previous legislation and the common law and remain so under the Act. Public Interest Considerations Prevention of bribery of foreign public officials is a significant policy aspect of the Act. In the context of facilitation payments, the following public inter est factors tending in favour of and against prosecution may be relevant. A pros ecution will usually take place unless the prosecutor is sure that there are pub lic interest factors tending against prosecution which outweigh those tending in favour. Factors tending in favour of prosecution: Large or repeated payments are more likely to attract a significant sentence (Co de 4.16a); Facilitation payments that are planned for or accepted as part of a standard way of conducting business may indicate the offence was premeditated (Code 4.16e); Payments may indicate an element of active corruption of the official in the way the offence was committed (Code 4.16k); Where a commercial organisation has a clear and appropriate policy setting out p rocedures an individual should follow if facilitation payments are requested and these have not been correctly followed. Factors tending against prosecution: A single small payment likely to result in only a nominal penalty (Code 4.17a); The payment(s) came to light as a result of a genuinely proactive approach invol ving self-reporting and remedial action (additional factor (a) in the Guidance o n Corporate Prosecutions); Where a commercial organisation has a clear and appropriate policy setting out p rocedures an individual should follow if facilitation payments are requested and

these have been correctly followed; The payer was in a vulnerable position arising from the circumstances in which t he payment was demanded. 9 Hospitality and promotional expenditure Hospitality or promotional expenditure which is reasonable, proportionate and ma de in good faith is an established and important part of doing business. The Act does not seek to penalise such activity. Hospitality and promotional expenditure could, however, form the basis of offenc es under s1 (bribing another person) or s6 (bribing a foreign public official) a nd constitute a bribe for the purpose of s7 (failure to prevent bribery). Under section 1 there must be an element of improper performance. Under section 6, it wi ll be necessary to show that the provision of hospitality or promotional expendi ture was intended to influence the foreign public official so as to obtain or re tain business, or an advantage in the conduct of business. The more lavish the hospitality or expenditure (beyond what may be reasonable st andards in the particular circumstances) the greater the inference that it is in tended to encourage or reward improper performance or influence an official. Lav ishness is just one factor that may be taken into account in determining whether an offence has been committed. The full circumstances of each case would need t o be considered. Other factors might include that the hospitality or expenditure was not clearly connected with legitimate business activity or was concealed. Public Interest Considerations Prevention of bribery of foreign public officials is a significant policy aspect of the Act. When considering the public interest stage, the factors tending in favour of and against prosecution referred to in respect of active bribery (sectio n 1) are likely to be relevant. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prose cution which outweigh those tending in favour. Section 7: Failure of commercial organisations to prevent bribery The legal elements A relevant commercial organisation will be liable to prosecution if a person assoc iated with it bribes another person intending to obtain or retain business or an advantage in the conduct of business for that organisation, but only if the ass ociated person is or would be guilty of an offence under section 1 or 6 (section 2 passive bribery is not relevant to a section 7 offence). Section 7 does not require a prosecution for the predicate offences under sectio n 1 or 6, but there needs to be sufficient evidence to prove the commission of s uch an offence to the normal criminal standard. For this purpose it is not neces sary for the associated person to have a close connection with the United Kingdo m (section 7(3)(b)). 10 The jurisdiction for this offence is wide (see section 12 of the Act). Provided that the commercial organisation is incorporated or formed in the UK, or that th e organisation carries out its business or part of its business in the UK, court s in the UK will have jurisdiction, irrespective of where in the world the acts or omissions which form part of the offence may be committed. The offence is not a substantive bribery offence. It does not involve vicarious liability and it does not replace or remove direct corporate liability for bribe ry. If it can be proved that someone representing the corporate directing mind bri bes or receives a bribe or encourages or assists someone else to do so then it m ay be appropriate to charge the organisation with a section 1 or 6 offence in th e alternative or in addition to any offence under section 7 (or a section 2 offe nce if the offence relates to being bribed). The defence of adequate procedures It is a defence if a relevant commercial organisation can show it had adequate p rocedures in place to prevent persons associated with it from bribing. The stand ard of proof the defendant would need to discharge in order to prove the defence is on the balance of probabilities. Whether the procedures are adequate will ul

timately be a matter for the courts to decide on a case by case basis. As stated in the Code (4.5) prosecutors must consider what the defence case may be, and how it is likely to affect the prospects of conviction, under the eviden tial stage. Clearly, the defence under s7(2) of adequate procedures is likely to be highly relevant when considering whether there is sufficient evidence to pro vide a realistic prospect of conviction. Prosecutors must look carefully at all the circumstances in which the alleged br ibe occurred including the adequacy of any anti-bribery procedures. A single ins tance of bribery does not necessarily mean that an organisations procedures are i nadequate. For example, the actions of an agent or an employee may be wilfully c ontrary to very robust corporate contractual requirements, instructions or guida nce. Section 9 Guidance Section 9 of the Act requires the Secretary of State to publish guidance on proc edures that relevant commercial organisations can put in place to prevent briber y by persons associated with them. Guidance about commercial organisations preven ting bribery (section 9 of the Bribery Act 2010) has been published by the Minist ry of Justice. Prosecutors must take it into account when considering whether th e procedures put in place by commercial organisations are adequate to prevent pe rsons performing services for or on their behalf from bribing. The Ministry of Justices guidance also provides some explanation of the Governmen t policy behind the formulation of the offences and gives 11 12 assistance on the particular concepts relevant to the application of sections 1, 6 and 7 in the context of commercial bribery. Prosecutors may find this helpful when reviewing cases involving commercial bribery. Public Interest Considerations The factors tending in favour of and against prosecution referred to above in re spect of section 1 may be equally applicable to the section 7 offence. The addit ional factors in the Guidance on Corporate Prosecutions will also be particularl y relevant in determining whether or not it is in the public interest to prosecu te. Obtaining the consent of the DPP or Director SFO The DPP or the Director of the Serious Fraud Office must give personal consent t o a prosecution under the Act as set out in section 10 of the Act. Prosecutors s hould follow any relevant internal procedures when submitting cases for consider ation. Useful links Bribery Act 2010 and Explanatory Notes Code for Crown Prosecutors Guidance on Corporate Prosecutions Approach of the SFO to dealing with overseas corruption (currently being revised ) OECD Convention on Combating Bribery of Foreign Public Officials (1997) UN Convention against Corruption Bribery Act 2010 From Wikipedia, the free encyclopedia Bribery Act 2010 Parliament of the United Kingdom Long title: An Act to make provision about offences relating to bribery; and for connected purposes Statute book chapter: 2010 c. 23 Introduced by: Jack Straw Territorial extent: England and Wales, Scotland and Northern Ireland Dates Royal Assent: 8 April 2010 Commencement: 1 July 2011 Status: Current legislation

Text of statute as originally enacted Official text of the statute as amended and in force today within the United Kin gdom, from the UK Statute Law Database v d e The Bribery Act 2010 (c.23) is an Act of the Parliament of the United Kingdom th at covers the criminal law relating to bribery. Introduced to Parliament in the Queens Speech in 2009 after several decades of reports and draft bills, the Act r eceived the Royal Assent on 8 April 2010 following cross-party support. Initiall y scheduled to enter into force in April 2010, this was changed to 1 July 2011. The Secretary of State for Justice has yet to publish guidance on the interpreta tion and use of the Act and has announced that it will not come into force until at least three months after such guidance is made available. The Act repeals al l previous statutory and common law provisions in relation to bribery, instead r eplacing them with the crimes of bribery, being bribed, the bribery of foreign p ublic officials, and the failure of a commercial organisation to prevent bribery on its behalf. The penalties for committing a crime under the Act are a maximum of 10 years impr isonment, along with an unlimited fine, and the potential for the confiscation o f property under the Proceeds of Crime Act 2002, as well as the disqualification of directors under the Company Directors Disqualification Act 1986. The Act has a near-universal jurisdiction, allowing for the prosecution of an individual or company with links to the United Kingdom, regardless of where the crime occurre d. Described as the toughest anti-corruption legislation in the world,[1] concerns have been raised that the Acts provisions criminalise behaviour that is acceptab le in the global market, and puts British business at a competitive disadvantage . Contents [hide] 1 Background 2 Act 2.1 General bribery offences 2.2 Bribery of foreign public officials 2.3 Failure of commercial organisations to prevent bribery 2.4 Prosecution and penalties 2.5 Other provisions 3 Assessment 4 See also 5 External links 6 References 7 Bibliography [edit] Background Prior to the Act, British anti-bribery law was based on the Public Bodies Corrup t Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention o f Corruption Act 1916, a body of law described as inconsistent, anachronistic and inadequate.[2] Following the Poulson affair in 1972, the Salmon Committee on Sta ndards in Public Life recommended updating and codifying these statutes, but the government of the time took no action. Similar suggestions were brought up in t he first report of the Committee on Standards in Public Life established by John Major in 1994, and the Home Office published a draft consultation paper in 1997 , discussing extending anti-bribery and anti-corruption law.[3] This was followe d by the Law Commissions report Legislating the Criminal Code: Corruption in 1998 .[4] The consultation paper and report coincided with mounting criticism from th e Organisation for Economic Co-operation and Development, who felt that, despite the United Kingdoms ratification of the OECD Anti-Bribery Convention, its briber

y laws were inadequate.[5] A draft Bribery Bill was announced in the 2002 Queens Speech, but was rejected by the joint committee examining it. A second consultation paper was issued in 200 5 examining the committees concerns, before the government announced in March tha t there was broad support for reform of the current law, but there was no consens us as to how this could be achieved.[6] Following a white paper in March 2009, th e Bribery Bill, based on the Law Commissions 2008 report Reforming Bribery,[7] wa s announced in the Queens Speech.[8] Initially given all-party support after its introduction by Jack Straw in 2009, the Bill was, according to The Guardian, sub ject to an attempted filibuster by Members of Parliament from the Conservative P arty. This followed pressure from the Confederation of British Industry, who wor ried that the Bill in its original form would hamper the competitiveness of Brit ish industry.[9] The Bill was given Royal Assent on 8 April 2010, becoming the Bribery Act 2010, and was expected to come into force immediately. The government instead chose to hold several rounds of public consultations before announcing that it would com e into force in April 2011.[10] As of February 2011, Ken Clarke, the Secretary o f State for Justice, has yet to publish guidance on the interpretation and use o f the Act, and has announced that it will not come into force until at least thr ee months after such guidance is made available.[11] The Ministry of Justice pub lished the guidance on 28 March 2011.[12] [edit] Act [edit] General bribery offences Sections 1 to 5 of the Act cover general bribery offences. The crime of bribery is described in Section 1 as occurring when a person offers, gives or promises to give a financial or other advantage to another individual in exchange for improperl y performing a relevant function or activity. Section 2 covers the offence of being bribed, which is defined as requesting, accepting or agreeing to accept such an advantage, in exchange for improperly performing such a function or activity. Fi nancial or other advantage is not defined in the Act, but, according to Aisha Anw ar and Gavin Deeprose in the Scots Law Times, could potentially encompass items s uch as contracts, non-monetary gifts and offers of employment.[5] The relevant fun ction or activity element is explained in Section 3it covers any function of a publ ic nature; any activity connected with a business, trade or profession; any acti vity performed in the course of a persons employment; or any activity performed b y or on behalf of a body of persons whether corporate or unincorporated. This app lies to both private and public industry, and encompasses activities performed o utside the UK, even activities with no link to the country.[13] The conditions a ttached are that the person performing the function could be expected to be perf orming it in good faith or with impartiality, or that an element of trust attach es to that persons role.[14] Under Section 4, the activity will be considered to be improperly performed when t he expectation of good faith or impartiality has been breached, or when the func tion has been performed in a way not expected of a person in a position of trust . Section 5 provides that the standard in deciding what would be expected is wha t a reasonable person in the UK might expect of a person in such a position. Whe re the breach has occurred in a jurisdiction outside the UK, local practises or customs should be disregarded when deciding this, unless they form part of the wr itten law of the jurisdiction; written law is given to mean any constitution, statu te or judicial opinion set down in writing.[13] The general offences also cover situations where the mere acceptance of such an advantage would constitute impro perly performing relevant functions or activities.[15] [edit] Bribery of foreign public officials Bribery of foreign public officials is a distinct crime under Section 6, in line with the OECD Anti-Bribery Convention.[16] A person will be guilty of this offe

nce if they promise, offer or give a financial or other advantage to a foreign p ublic official, either directly or through a third party, where such an advantag e is not legitimately due. A foreign public official is defined, under Section 6 (4), as an individual holding legislative, administrative or judicial posts or a nyone carrying out a public function for a foreign country or the countrys public agencies or an official or agent of a public international organisation. The inc lusion of through a third party is intended to prevent the use of go-betweens to a void committing a crime, although if the written law of the country of the forei gn public official allows or requires the official to accept the advantage offer ed, no crime will be committed.[17] Unlike with general bribery offences, there is no requirement to show that the public official acted improperly as a result; this is a distinction between the Act and the Anti-Bribery Convention. The offe nce under Section 6 only applies to the briber, and not to the official who rece ives or agrees to receive such a bribe.[18] [edit] Failure of commercial organisations to prevent bribery Section 7 creates the broad and innovatory offence of the failure of commercial or ganisations to prevent bribery on their behalf. This applies to all commercial o rganisations which have business in the UK. Unlike corporate manslaughter, this does not only apply to the organisation itself; individuals and employees may al so be guilty.[19] The offence is one of strict liability, with no need to prove any kind of intention or positive action.[20] It is also one of vicarious liabil ity; a commercial organisation can be guilty of the offence if the bribery is ca rried out by an employee, an agent, a subsidiary, or another third-party, as fou nd in Section 8. The location of the third-party is irrelevant to the prosecutio n according to David Aaronberg and Nichola Higgins in the Archbold Review, therefo re, a German business with retail outlets in the UK which pays a bribe in Spain could, in theory at least, face prosecution in the UK. Under Section 7(2), the co mmercial organisation has a defence if it can show that, while bribery did take place, the commercial organisation had in place adequate procedures designed to p revent persons associated with [the organisation] from undertaking such conduct. Under the Acts explanatory notes, the burden of proof in this situation is on the organisation, with the burden of proof being on the balance of probabilities.[21] Section 9 requires the Secretary of State to publish guidance on the interpreta tion of the Section 7 offence.[22] [edit] Prosecution and penalties Section 10 requires the authorisation of any prosecution by the director of the appropriate prosecution agency before a case can go ahead; this is a shift from the old regime, which required the consent of the Attorney General for England a nd Wales.[23] Section 11 explains the penalties for individuals and companies fo und guilty of committing a crime. If an individual is found guilty of a bribery offence, tried as a summary offence, they may be imprisoned for up to 12 months and fined up to 5,000. Someone found guilty on indictment, however, faces up to 1 0 years imprisonment and an unlimited fine.[24] The crime of a commercial organis ation failing to prevent bribery is punishable by an unlimited fine. In addition , a convicted individual or organisation may be subject to a confiscation order under the Proceeds of Crime Act 2002, while a company director who is convicted may be disqualified under the Company Directors Disqualification Act 1986.[25] [edit] Other provisions The scope of the Acts provisions is set out in Section 12. For someone to fall wi thin the Acts purview, they must have either committed a crime inside the United Kingdom, or acted outside of the United Kingdom in a way which would have consti tuted a crime had it happened in the UK. For a prosecution in the latter case, t he person must have a close connection to the UK, which includes being a British c itizen, resident or protected person, a company incorporated in the UK, or a Sco ttish partnership.[26] Section 13 provides the only defence available with the g eneral bribery offencesthat the conduct was necessary for the proper functioning of the intelligence services or, when engaged in active service, the armed force

s.[17] Under Section 14, senior officers or directors in a company which commits a general bribery offence will also be liable for the purposes of the Act.[27] In the case of an offence committed by a partnership, Section 15 provides that t he prosecution must be brought in the name of the partnership and not in the nam e of any of the partners.[28] Under Section 16, the Act applies to servants of the crown,[21] while Section 17 repeals all previous common law and statutory offences relating to bribery, rep lacing them with provisions of the Act.[4] Section 18 provides that the Act appl ies to England and Wales, Scotland and Northern Ireland; while the separate cons ent of the Scottish Parliament is usually required in such cases, as is made cle ar in Section 19, a Legislative Consent Motion was passed on 11 February 2010, a llowing for the application of the Act within Scotland.[21] [edit] Assessment The Act has been described as the toughest anti-corruption legislation in the wor ld, raising the bar above the standard set by the United States Foreign Corrupt P ractices Act.[1] Despite being widely drafted and far-reaching in scope [and] in many ways an improvement on earlier corruption legislation, significant concerns have been raised, mainly around the fact that the Act may harm British industrys competitiveness in the global market. David Aaronberg and Nichola Higgins, writi ng in the Archbold Review, argue that section 6 particularly has the potential t o include actions which are ethically problematic but seen as legally permissibl e.[29] Aisha Anwar and Gavin Deeprose in the Scots Law Times take a similar line , highlighting as particularly problematic areas corporate hospitality and facil itation payments, described as essentially a form of extortion on the payer and, although not a common feature in the UK, they are commonplace in many internatio nal jurisdictions, which may fall under the scope of the Act despite being permis sible in the commercial world.[25] [edit] See also Foreign Corrupt Practices Act [edit] External links The Ministry of Justices Bribery Act portal The OECD Anti Corruption Convention [edit] References ^ a b Breslin (2010) p.362 ^ Aaronberg (2010) p.4 ^ Sheikh (2011) p.2 ^ a b Sullivan (2010) p.87 ^ a b Anwar (2010) p.125 ^ Sheikh (2011) p.3 ^ Editor (2010) p.439 ^ Wearden, Graeme (18 November 2009). Queens speech 2009: bribery bill. The Gua rdian (Guardian News and Media). Retrieved 10 February 2011. ^ Macalister, Terry (5 April 2010). Conservatives attempt to water down bribe ry bill under CBI pressure. The Guardian (Guardian News and Media). Retrieved 10 February 2011. ^ Butterworth, Siobhain (23 July 2010). Government delays Bribery Act again. T he Guardian (Guardian News and Media). Retrieved 10 February 2011. ^ Leigh, David (31 January 2011). British firms face bribery blacklist, warns corruption watchdog. The Guardian (Guardian News and Media). Retrieved 10 Februa ry 2011. ^ Ministry of Justice website. ^ a b Anwar (2010) p.126 ^ Aaronberg (2010) p.5

^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^

Sheikh (2011) p.4 Sheikh (2011) p.5 a b Anwar (2010) p.127 Aaronberg (2010) p.6 Sullivan (2010) p.92 Breslin (2010) p.363 a b c Aaronberg (2010) p.7 Sullivan (2010) p.93 Aaronberg (2010) p.8 Pope (2010) p.482 a b Anwar (2010) p.128 Pope (2010) p.481 Sullivan (2010) p.99 Pope (2010) p.480 Aaronberg (2010) p.9

[edit] Bibliography Aaronberg, David; Nichola Higgins (2010). The Bribery Act 2010: all bark and no bite?. Archbold Review (Sweet & Maxwell) 2010 (5). ISSN 1756-7432. Anwar, Aisha; Gavin Deeprose (2010). The Bribery Act 2010. Scots Law Times (Sw eet & Maxwell) 2010 (23). ISSN 036-908X. Breslin, Brigid; Doron Ezickson, John Kocoras (2010). The Bribery Act 2010: r aising the bar above the US Foreign Corrupt Practices Act. Company Lawyer (Sweet & Maxwell) 31 (11). ISSN 0144-1027. Editor (2010). The Bribery Act 2010. Criminal Law Review (Sweet & Maxwell) 201 0 (6). ISSN 0011-135X. Pope, Tim; Thomas Webb (2010). The Bribery Act 2010. Journal of International Banking Law and Regulation (Sweet & Maxwell) 25 (10). ISSN 0267-937X. Sheikh, Saleem (2011). The Bribery Act 2010: commercial organisations beware!. International Company and Commercial Law Review (Sweet & Maxwell) 22 (1). ISSN 0958-5214. Sullivan, G. (2011). The Bribery Act 2010: Part One: an overview. Criminal Law Review 2011 (2). ISSN 0011-135X. This is a good article. Click here for more information. View page ratings Rate this page Whats this? Trustworthy Objective Complete Well-written I am highly knowledgeable about this topic (optional) Categories: United Kingdom Acts of Parliament 2010 United Kingdom company law Business ethics Bakulaji My talk My preferences My watchlist My contributions Log out Wikimedia Foundation Powered by MediaWiki This page was last modified on 21 July 2011 at 16:49. Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. See Terms of use for details.

Wikipedia is a registered trademark of the Wikimedia Foundation, Inc., a nonprofit organization. and I am Sid Harth@mysistereileen.com Share this: Email Print StumbleUpon Digg Facebook Reddit This entry was posted on August 12, 2011 at 2:07 pm and is filed under Uncategor ized. You can follow any responses to this entry through the RSS 2.0 feed.