Gibraltar: Would Taking Your Clients To The Olympics Have Been An Act Of Bribery?

Last Updated: 17 August 2012
Article by Scott Simmons

An event the size of the Olympics will always court some controversy as it gets underway, but few were expecting that empty seats would be top of the list. However, as the Games got started and the television pictures showed thousands of empty seats, so the recriminations began.

Much has already been said about why the allocations were not taken up, but one interesting theory that has been mentioned in the news and on social media is that a contributing factor was many sponsors and other corporates decided against taking clients and intermediaries out of fear of being seen to be bribing those they have taken and therefore committing an offence under the Bribery Act ('the Act').

It is certainly an interesting point, and one that should be considered, but it also highlights a misunderstanding, or even lack of knowledge, of the Act itself and the guidance that has been published along with it.

The Act broadly defines bribery as the offering, promising, giving, accepting or soliciting of an advantage as an inducement for an action which is illegal or a breach of trust. It applies to both individuals and corporate bodies. It also contains a 'strict liability' offence for commercial organisations where they fail to prevent bribery by those acting on their behalf, which include, but are not limited to, employees, agents and third parties.

The Act can make for scary reading. In the context of the Olympics, the tickets were high value items and the fear was that it could have been seen as a company trying to buy its client's continued custom. And rightly so: with most of the world still suffering from a downturn, businesses have to find ways of keeping their existing client base on-board or risk losing them to a competitor.

However, this is where a closer read of the Act and the guidance can ease (most) businesses' concerns. The Act itself states very clearly that there are two parts to the offence of bribery: (i) you must offer, promise or give a financial advantage, and (ii) you must intend that advantage to induce a person to act illegally or in breach of trust or reward them for having done so. Intention is all-important and here is where the Ministry of Justice Guidance ('the Guidance') to the Act can help further.

The Guidance states that "bona fide hospitality... which seeks to improve the image of a commercial organisation, better present products and services, or establish cordial relations, is recognised as an established and important part of doing business and it is not the intention of the Act to criminalise such behaviour." By way of example, the Guidance uses an invitation to clients to a Six Nations match at Twickenham, stating that if it is done as part of a public relations exercise designed to cement good relations or enhance knowledge in the organisation's field, it is extremely unlikely to fall foul of the Act as there is unlikely to be evidence of an intention to induce improper conduct.

What must be remembered is that when considering whether to bring charges, the prosecution must look at the totality of the evidence which takes into account all of the surrounding circumstances. Of course the prosecution bear in mind the type and level of the hospitality or other advantage offered, but they will also consider the standards or norms applying in a particular sector and, most importantly, whether you are currently tendering for work from your chosen guest – this is particularly important when dealing with foreign public officials.

However, the hospitality or expense does not have to be lavish to be a bribe and it is here that the Act is truly misunderstood. If the intention of the gift or hospitality is to influence the recipient to do something they otherwise would not have done, then even the smallest gift can be a bribe.

Ultimately, the circumstances behind the hospitality will determine whether it is genuine or a bribe. An important factor here is to think about who your guest should be. If it is a long-standing client with whom you have a good relationship and for whom you have always undertaken quality work, then there should be no reason not to ask them. However, if you have heard that a client is considering moving their business elsewhere and you aren't sure how you could keep them, then offering them tickets for an event like the Olympics is probably not a good move. The Bribery Act is not something to be feared, it should be embraced. What you must do is seek proper advice, ensure that everyone in your company is trained and has a good understanding of the practical effects of the Act and that all bribery-related decisions taken are proportionate to the risks.

For those of us based in Gibraltar, the bribery provisions of the Crimes Act will shortly come into force. Its wording is similar to that of the UK Bribery Act and, with no guidance provided so far, it is safe to assume that the UK guidance should be adopted here.

So if you had tickets to the Olympics and chose not to use them, then you, along with your clients, missed out on a once-in-a-lifetime opportunity. Learning about the Act could mean you won't make the same mistake in the future.

www.gibraltarlaw.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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