Section 2: Offences relating to being bribed
20.This section defines the offence of bribery as it applies to the recipient or potential recipient of the bribe, who is called R. It distinguishes four cases, namely Case 3 to Case 6.
21.In Cases 3, 4 and 5 there is a requirement that R “requests, agrees to receive or accepts” an advantage, whether or not R actually receives it. This requirement must then be linked with the “improper performance” of a relevant function or activity. As with section 1, the nature of this function or activity is addressed in section 3, and “improper performance” is defined in section 4.
22.The link between the request, agreement to receive or acceptance of an advantage and improper performance may take three forms:
R may intend improper performance to follow as a consequence of the request, agreement to receive or acceptance of the advantage (Case 3, in subsection (2));
requesting, agreeing to receive or accepting the advantage may itself amount to improper performance of the relevant function or activity (Case 4, in subsection (3));
alternatively, the advantage may be a reward for performing the function or activity improperly (Case 5, in subsection (4)).
23.In Cases 3 and 5, it does not matter whether the improper performance is by R or by another person. In Case 4, it must be R’s requesting, agreeing to receive or acceptance of the advantage which amounts to improper performance, subject to subsection (6).
24.In Case 6 (subsection (5)) what is required is improper performance by R (or another person, where R requests it, assents to or acquiesces in it). This performance must be in anticipation or in consequence of a request, agreement to receive or acceptance of an advantage.
25.Subsection (6) is concerned with the role of R in requesting, agreeing to receive or accepting advantages, or in benefiting from them, in Cases 3 to 6. First, this subsection makes it clear that in Cases 3 to 6 it does not matter whether it is R, or someone else through whom R acts, who requests, agrees to receive or accepts the advantage (subsection (6)(a)). Secondly, subsection (6) indicates that the advantage can be for the benefit of R, or of another person (subsection (6)(b)).
26.Subsection (7) makes it clear that in Cases 4 to 6, it is immaterial whether R knows or believes that the performance of the function is improper. Additionally, by subsection (8), in Case 6 where the function or activity is performed by another person, it is immaterial whether that person knew or believed that the performance of the function is improper.
