Understanding the line between bribery and marketing
Shropshire businesses providing gifts or hospitality to clients and associates should take steps to avoid falling foul of new anti-bribery laws, according to a leading commercial lawyer.
The Bribery Act 2010 came into force this summer, though debate has continued into how rigidly it may be enforced and how the law will be interpreted.
Edmund Coxhead, a commercial lawyer and partner at PCB Solicitors, in Shrewsbury, said there had been some clarification of what could be construed as bribery and that businesses of all sizes could take steps to avoid being seen to be unduly influencing others in a way that would take them outside the new law.
Under the Bribery Act 2010 it is now a clear offence to give a bribe, promise, offer, request or agree to receive a bribe, bribe a foreign public official or for a commercial organisation to fail to prevent an associated person from bribing another person for its benefit.
Mr Coxhead explained: “The Ministry of Justice has clarified in its public guidance that bona fide hospitality and other promotional activity, aimed at better presenting a business's products and services or to build better relations, is seen as a normal and important part of doing business and that there is no intention to make such behaviour criminal.
“The director of the Serious Fraud Office has also made clear that this legislation is not about the odd extra bottle of wine or taking a client to a high profile sporting event. He went as far as to say this was regarded as normal and was to be encouraged. However, like any area governed by specific legislation, there will be lines not to cross and grey areas not to stray into. Firms can take steps to avoid wandering into troublesome areas and we would suggest that all businesses now take some time to examine this issue and negate any risks.
“Businesses should have a procedure for assessing the giving of gifts and hospitality, applying certain tests to each instance, such as whether the timing could be seen to influence a particular decision, perhaps around a contract bid. Is the proposed activity or gift normal in their industry sector or would it be considered excessive? Would the gift or hospitality put the recipient under any sense of obligation? Is there a real business justification for giving the gift?”
Businesses failing to build anti-bribery controls into their procedures and policies risk fines up to £5,000 or 12 months in prison for less serious offences, with unlimited fines and up to 10 years in prison for more serious cases.
Mr Coxhead added: “Firms need to be awake to this piece of legislation and ensure their policies are understood by staff at all levels. Where they are unsure they should seek professional advice in creating their procedures and testing situations.”
