Factors relevant to liability

Proof of intention or 

If you participate in or facilitate a corruption offence, then whether or not you are criminally liable normally depends on whether you had the requisite intention or knowledge (i.e. that you intended the relevant circumstance to occur, or knew or suspected that it would occur).

However, it is sometimes difficult for prosecuting authorities to prove the necessary corrupt intention or knowledge, as the parties involved will normally deny that they had any such intention or knowledge, and there may be no clear evidence of such intention or knowledge.  In such cases, courts may accept an inference of corrupt intention or knowledge.  This is where the courts conclude that the only reasonable explanation for the matters in question is that they were intended to be corrupt, or that the relevant parties knew they were corrupt. 

For example, if a contractor makes a large payment, or gives an expensive gift, to a public official, and the public official subsequently awards a contract to the contractor, then the court may infer that the only reasonable explanation for the payment or expensive gift was that it was intended to influence the public official to act improperly and so was a bribe.

Circumstances which are not valid defences:

It is important to be aware that if you participate in or facilitate a corruption offence, you may still be personally liable even if:

  • you thought that acting in this manner was “normal in that country” or was “standard business practice”
  • your competitors were acting corruptly, so you only acted corruptly so as to “level the playing field” with your competitors
  • you paid the bribe so as to help your employer avoid a loss (e.g. if equipment was being wrongfully detained by customs)
  • you added an additional unjustified amount to a contract claim as a “negotiation margin”, as you knew that the other party would try to reduce your claim
  • you had been instructed to act in this manner by someone more senior to you in the organisation
  • you did not personally benefit from the corrupt act.

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1st April 2024