Bribery Act Guidance: Section 8 Offence
In a landmark move, Bermuda’s Bribery Act 2016 has introduced a new offence aimed at preventing the bribery of foreign public officials. This article provides guidance on Section 8 of the Act, which creates criminal liability for anyone who offers, promises or gives a financial or other advantage to a foreign public official with the intention of influencing their actions in the performance of their official duties.
What is a Foreign Public Official?
The term “foreign public official” includes individuals who hold elected or appointed positions in the government, administration, or judiciary of a country or territory outside Bermuda. This also encompasses:
- Professionals working for public health agencies
- Officers exercising public functions in state-owned enterprises
- Officials or agents of public international organisations such as:
- United Nations
- CARICOM
- European Union
- World Bank
The Intent Behind Section 8
The policy behind this offence is to prohibit the influencing of decision-making in publicly funded business opportunities by offering personal enrichment to foreign public officials or others at their request, assent or acquiescence. This conduct may amount to “improper performance” of a relevant function or activity, but section 8 does not require proof of it or an intention to induce it.
Evidential Challenges
The exact nature of the functions of persons regarded as foreign public officials is often difficult to ascertain with accuracy, and securing evidence will often rely on cooperation from the state in which they serve. Therefore, requiring prosecutors to rely solely on section 3 would create a significant deficiency in addressing this particular mischief.
Local Law Considerations
For the purposes of section 8, prosecutors must show that an “advantage” was offered, promised or given to the official or another person at their request, assent or acquiescence. Additionally, the advantage must not be one that the official is permitted or required to be influenced by under written law applicable to the foreign official.
Example Scenario
For instance, where local planning law permits community investment or requires it as a condition of publicly funded contracts, such arrangements would fall outside the scope of the offence. However, if an advantage is offered in circumstances where the official is not permitted or required to be influenced by written law, then section 8 may apply.
The Bermuda Government has emphasized that its intention is not to criminalize behaviour where no mischief occurs but rather to formulate the offence to take account of evidential difficulties and ensure that publicly funded business opportunities are free from bribery.