How does an individual incur criminal liability for corruption?

 

The exact nature and extent of criminal liability will depend on the law of a particular country.  However, the principles stated below will apply in a number of jurisdictions.

 

An individual may incur criminal liability for corruption as follows:

• Those directly involved:  An individual who is directly involved in committing a corruption offence may be liable for the offence.

 

• Those indirectly involved:  An individual may be liable for a corruption offence where he is indirectly involved in committing the offence.  For example, an individual may be liable where he has used another person or organisation to commit the corrupt act on his behalf.

 

• Those in authority:  A person in authority, such as a chief executive, director, financial manager or commercial manager, may be liable for a corruption offence even where he was not directly involved in committing the offence, but where he either expressly authorised the offence or that type of offence, or knew of the offence and either consented to it or was wilfully blind to it.  Such liability may arise where, for example, a chief executive suspects that the company's employees may be paying bribes on a project, but takes no action to prevent them doing so.

 

• Aiding and abetting:  An individual may also be liable for aiding and abetting (or equivalent offence) where he has aided or assisted in the committing of the offence.  For example, a lawyer who drafts an agreement which documents or conceals a corrupt act, or an accountant who implements a corrupt payment
  
  

Intention:  To be criminally liable for a corruption offence, you will normally need the necessary criminal intention.  In the case of bribery, this will normally require that you knew of the corrupt circumstances, or that you were wilfully blind to the corrupt circumstances.  You may be liable for fraud if you make an oral or written statement which you do not honestly believe to be true.  Different jurisdictions will have different tests for the required level of intention or knowledge.

Ineffective excuses:  Sometimes people wrongly believe that the following circumstances mean that they are not committing an offence.  However, an individual could possibly incur criminal liability even where:

• He/she was not aware that the activity constituted a crime.
• He/she did not or would not make any personal gain from the activity.
• He/she did not pay or receive the bribe personally, and instead the bribe was paid through or received by another person, such as an agent, subsidiary company, joint venture partner, friend, spouse or other third party.
• He/she did not commit a fraud personally, and instead the fraud was committed through another person.
• He/she was following the instructions of a superior in the organisation.
• He/she believed that his actions were in the interests of his/her employer.
• There were threats of adverse consequences made to him/her in order to make him/her commit the offence (unless he/she feared imminent physical harm).
• The bribe or fraudulent activity did not involve money, but instead involved the provision of a non-cash advantage, for example, a future contract, a holiday, jewellery or other gift.
• The person who had been offered or who had received the bribe did not act in the way intended when the bribe was agreed.
• The bribe was offered, but was never actually paid.
• The amount of the bribe was less than the financial damage which could result from failure to pay the bribe.
• The conduct constituting the offence was widely practised and considered to be normal business practice.
• The conduct constituting the offence was believed to be necessary for a company to remain competitive.
• The offence did not succeed (as the person could be liable for an attempt to commit the offence).