Lissack and Horlick on Bribery and Corruption; When is a benefit a bribe?
Fiona Horlick QC, as co-editor and major contributing author of Lissack and Horlick on Bribery and Corruption, authored chapter 4, 7 and 14 of the third edition. Fiona provides a definitive guide to bribes, NGOs in the bribery and corruption arena and analysis of the prosecution authorities in the UK.
In Chapter 4, a definitive guide to ‘When is a benefit a bribe’, Fiona has looked at what is a ‘financial or other advantage’ in the Bribery Act 2010 offences. In essence, a ‘bribe’ is a financial or other advantage used to induce or reward the improper performance of a function or activity. However, it is evident that not every payment or benefit will fall into the definition of a bribe. A person can receive, for example, a gift and subsequently award a contract to the donor of the gift but that gift will not constitute a bribe unless the contract was awarded improperly by the recipient as a consequence of receiving the gift. There must be some reciprocity and direct connection between the giving or receipt of some ‘advantage’ and what is improperly obtained in exchange. In this chapter, Fiona has looked at specific, and often problematic, types of payments and other benefits.
As was observed in earlier editions, one might have hoped for detailed guidance from the prosecuting authorities but such guidance as exists has not been particularly helpful. There have now been a number of cases under the Bribery Act 2010, some which have proceeded to trial, and some which have concluded with a DPA. These cases have almost without exception involved an obvious bribe of sums of money. However, a small minority of the cases have featured other benefits, albeit not as the primary benefit.
Fiona’s chapter looks at the national and international sources of guidance from government, international agreements, international organisations, NGO, trade organisations and other sources as well as examples of FCPA cases to provide a guide to the thorny questions of gifts, corporate hospitality including meals, hotels, sightseeing trips, corporate sponsorship, as well as charitable donations, political donations and facilitation (grease) payments. It is a definitive guide to sources of information and provides a clear analysis of how to address these different areas and the problems that arise from them.
In Chapter 14, Fiona looked at the relevant national and international NGOs in the bribery and corruption arena to provide a guide to their resources. Fiona makes the point that the UK prosecuting authorities might reasonable expect even the smallest firm to have sought out sources of free information to help guide their anti-bribery and due diligence measures.
In Chapter 7, Fiona together with Eleanor Davison of Fountain Court Chambers, have provided an analysis of the prosecution authorities in the UK together with a guide to their remit and the parameters of their prosecutorial discretion.
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The full chapter is available for Lexis Nexis subscribers here.
About the Author
Fiona Horlick QC‘s experience of financial crime, regulation and enforcement is wide ranging. It includes large scale MTIC fraud, international advance fee fraud, tax fraud, fraudulent trading, mortgage fraud, money laundering and asset recovery.
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