Kara Sears
Bribery is a corrupt act that involves the solicitation, payment, or acceptance of a private favour in exchange for official action. It is a crime that can be committed by both the offeror and the recipient, and is often associated with the corruption of public officials or government employees. While there is no universal definition of bribery, it generally involves someone in an appointed position acting voluntarily in breach of trust in exchange for a benefit, which can take the form of money, gifts, or other advantages. In the context of common law, bribery can be defined as the promising, offering, or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions.
| Characteristics | Values |
|---|---|
| Definition | Bribery is the corrupt solicitation, payment, or acceptance of a private favor (a bribe) in exchange for official action. |
| Purpose | To influence the actions of the recipient, a person in charge of an official duty, to act contrary to their duty and the known rules of honesty and integrity. |
| Nature of the bribe | Money or other items of value. However, gifts of money or other items of value that are otherwise available to everyone on an equivalent basis, and not for dishonest purposes, are not bribery. |
| Parties involved | Both the offeror and the recipient can be criminally charged. |
| Proof | Proof of bribery requires demonstrating a “quid pro quo” relationship in which the recipient directly alters behavior in exchange for the gift. |
| Penalties | Penalties for bribery may include prison time and personal and professional setbacks. |
| Prosecution | Violators may be prosecuted under federal statutes. |
| Active bribery | When a person offers, promises, or gives a bribe. |
| Passive bribery | When a person requests, receives, or accepts a bribe. |
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What You'll Learn
Active vs. passive bribery
Bribery is the corrupt solicitation, payment, or acceptance of a private favour (a bribe) in exchange for official action. It involves someone in an appointed position acting voluntarily in breach of trust in exchange for a benefit. The benefit does not have to be in the form of cash or a payment, but it can also be lavish gifts, hospitality, expenses, access to assets, or a favour made to a relative, friend, or favoured cause.
Active bribery refers to the act of offering, promising, or giving a bribe. It can be defined as "the promising, offering, or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions".
Passive bribery, on the other hand, occurs when an individual or business asks for or receives a bribe. It can be defined as "the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions".
The distinction between active and passive bribery is important because it allows for the early steps of a corrupt deal, such as offering, promising, or requesting an advantage, to be prosecuted as offences. This makes the prosecution of bribery offences easier since it can be difficult to prove a formal agreement between the bribe-giver and the bribe-taker.
While bribery legislation in most countries focuses on active bribery, the consequences of passive bribery can be equally severe. For example, in the United States, the Foreign Corrupt Practices Act (FCPA) prohibits citizens and entities from bribing foreign government officials, while the UK Bribery Act defines bribery as an offence where financial or other benefits are offered, promised, or given to induce improper performance of a function or activity.
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Solicitation of a bribe
Bribery is generally defined as the corrupt solicitation, offering, giving, accepting, payment, transfer, or receipt of a bribe, which is typically an illegal or unethical gift or lobbying effort. The purpose of a bribe is to influence the actions of the recipient, who holds a public or legal duty, to act contrary to their duty and the known rules of honesty and integrity. Solicitation of a bribe is a key element of bribery and refers to the act of asking, enticing, or requesting another person to commit bribery. This can include demanding or seeking anything of value, such as money, gifts, or other advantages, in exchange for influencing the recipient's official actions or decisions.
Examples of solicitation of a bribe include a procurement executive demanding a "kickback" to award a contract, a motorist bribing a police officer to avoid a speeding ticket, or a citizen bribing a functionary for faster service. These instances involve individuals seeking personal gains or advantages by influencing those in positions of power or authority. Solicitation of a bribe undermines honesty, integrity, and fair practices, and is therefore treated as a serious crime with legal consequences.
To establish the crime of solicitation of a bribe, it is essential to demonstrate the intent to influence the discharge of another's official duties. This involves proving a "quid pro quo" relationship, where there is a direct exchange between the gift or advantage offered and the recipient's altered behaviour or decision-making. While campaign donations or rebates available to everyone on equivalent terms are not considered bribery, specific discounts or favours intended to influence official actions fall under the definition of bribery.
The negative impact of bribery extends beyond individual actions and can hinder economic growth. Economists have identified that bribery encourages rent-seeking behaviour, where individuals or corporations attempt to illicitly influence the market to gain a disproportionate amount of wealth. This results in a sub-optimal allocation of resources and depressed economic growth. Therefore, understanding and addressing solicitation of a bribe, as a critical aspect of bribery, is essential for promoting integrity, fairness, and economic stability.
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Proof of bribery
Bribery is the corrupt solicitation, payment, or acceptance of a private favour in exchange for official action. The purpose of a bribe is to influence the actions of the recipient, who is in charge of an official duty, to act contrary to their duty and the known rules of honesty and integrity.
Active bribery can be defined as "the promising, offering, or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions." Passive bribery, on the other hand, involves "the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions."
The distinction between active and passive bribery is important because it makes the prosecution of bribery offences easier. It can be very difficult to prove that two parties (the bribe-giver and the bribe-taker) have formally agreed upon a corrupt deal. There is often no such formal deal but only a mutual understanding.
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Penalties for bribery
UK Bribery Act 2010
The UK Bribery Act 2010 sets out the five key bribery offences and imposes strict liability on commercial organisations whose service providers ("associated persons") engage in bribery unless adequate procedures are in place to prevent it. The Act covers bribery, being bribed, bribery of foreign public officials, and the failure of a commercial organisation to prevent bribery.
The penalties for individuals found guilty of bribery under the Act include a maximum sentence of 10 years' imprisonment, an unlimited fine, and the potential for confiscation of property under the Proceeds of Crime Act 2002. Company directors may be disqualified from acting as a director for between two and fifteen years under the Company Directors Disqualification Act 1986.
Organisations found guilty of bribery face an unlimited fine, removal of tainted proceeds, debarment from public sector contracts or tenders, and the disruption and cost of a law enforcement investigation.
United States
In the United States, bribery is a crime, and enforcement against it is common. The penalties for bribery in the US depend on the jurisdiction and the nature of the offence.
Under the Foreign Corrupt Practices Act (FCPA), commercial bribery is illegal, and the punishment can be severe. The FCPA imposes criminal liability for acts in other jurisdictions that may not be illegal in those countries. Both California and the US Federal Government have laws prohibiting and punishing bribery in the commercial setting. The amount of the penalty often depends on the sums offered and/or accepted as a bribe.
In California, bribery is classified as a felony, which carries a penalty of imprisonment in state prison, typically for more than one year. Misdemeanours, which are lesser crimes, may result in imprisonment in a county jail for one year or less.
Common Law
At common law, bribery refers to the offering, giving, soliciting, or receiving of any item of value to influence the actions of an individual holding a public or legal duty. Both the offeror and the recipient can be criminally charged, and the penalty for attempted bribery is often the same as for completed bribery.
The penalty for bribery under common law depends on the specific jurisdiction and the nature of the offence. In some cases, it may result in imprisonment, fines, or both.
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Corruption of public officials
Bribery is generally defined as the corrupt solicitation, acceptance, offering, or transfer of value in exchange for official action. It involves a "quid pro quo" relationship, where a person in a position of authority directly alters their behaviour or refrains from acting in exchange for a bribe. This can include money, gifts, or other advantages. Bribery is often associated with the corruption of public officials or government employees, and it is a white-collar crime that can lead to prison time and other serious consequences.
Public officials are individuals who hold a public or legal duty and are in a position of trust. Bribery of public officials involves offering, promising, giving, accepting, or soliciting an advantage or undue influence to breach that trust. This can include active bribery, where a person offers, promises, or gives a bribe, and passive bribery, where a person requests, receives, or accepts a bribe. Both forms of bribery are illegal and can have negative consequences for societies and fair trading.
The corruption of public officials through bribery can take many forms. It can involve customs officials harassing a firm and accepting bribes to expedite the passage of goods, as seen in some countries. It can also include channeling bribes through consultants to win public contracts, employing a public official's relative, or providing excessive travel expenses to influence decisions. Bribery may also occur in security, procurement, allocation of goods, recruitment, and insider fraud in financial institutions.
To address bribery, many countries have implemented anti-bribery legislation, such as the UK Bribery Act, the OECD Anti-bribery Convention, and the U.S. Foreign Corrupt Practices Act (FCPA). These laws aim to criminalize both active and passive bribery, holding both the offeror and the recipient liable. Companies can also be held responsible for failing to prevent bribery by their employees or associated persons.
The prosecution of bribery offences can be challenging, as often there is no formal agreement between the bribe-giver and the bribe-taker. However, the dissociation between active and passive bribery makes it easier to prosecute, as it criminalizes the early steps of offering, promising, or requesting an advantage. Additionally, statutes may require proof of intent and understanding of the arrangement by both parties.
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Frequently asked questions
Bribery is the corrupt solicitation, offering, giving, accepting, or transferring of anything of value in exchange for official action. It involves someone in an appointed position acting voluntarily in breach of trust in exchange for a benefit.
Active bribery refers to the offering, promising, or giving of a bribe, while passive bribery involves requesting, receiving, or accepting a bribe.
Passive bribery often occurs in security, purchasing and procurement, allocation of goods and services, recruitment, insider fraud, and illegal information brokering. For example, a security officer may accept a bribe from criminals to allow access for theft, or an executive may demand a "kickback" to award a contract.
Bribery is a white-collar crime that can result in prison time and personal and professional setbacks. Both the offeror and recipient of a bribe can be criminally charged, and companies can be held liable if they fail to prevent bribery. The specific penalties vary depending on the jurisdiction and the situation.
