Public officials in the Isle of Man have a duty by law to report their suspicions to the authorities if they believe that bribery has taken place.
It is a ‘significant’ difference to the UK in the recently introduced Bribery Act, 2013.
Leading London barrister Tim Kendal revealed the new island law is very similar to the exisiting UK legislation apart from this clause.
People convicted of bribery offences could face up to 10 years in prison and heavy fines and leading island advocate Laurence Keenan implored businesses to look carefully at the legislation.
The important difference regarding public officials having to report bribery was disclosed at a well-attended event at the Palace Hotel, Douglas, organised by Laurence Keenan Advocates in association with the Isle of Man Law Society.
Tim Kendal said: ‘We don’t have a duty [in the UK] on a public official who discovers either that he has been offered a bribe or that other persons have been offered one.
‘We do not have a duty on that public official to report it to a proper authority, whether that proper authority is a constable or his employer.
‘In this jurisdiction you do. I have looked at the debates in your parliament to discover why that would be. But it may be that in a much smaller community the relationships between persons here are closer, more difficult to confront by way of whistleblowing, I don’t know.
‘But as far as public officials are concerned [in the island] there is in section 13 this duty, if he receives an offer or an advantage which he thinks may constitute an offence under the Act, he has to disclose it and if he doesn’t he commits an offence.’
He added: ‘It will be important to persons within public authorities and occupying positions of officialdom here.
‘But you don’t have to be involved in multinational work to confront the issues. These sections are designed to criminalise and by stringent penalties to prevent.
‘The sentence on conviction for the bribery offences are 10 years in the upper court and an unlimited fine.’
Mr Kendal, who specialises in business crime, and has been involved in high-profile cases, told the packed audience during one of two presentations last week: ‘Your Bribery Act and our act in the UK are very similar although yours has been finessed, and in fact in its set out it is a much more easy to understand statute than is ours in the UK.
‘So congratulations to your legislature.’
RAMIFICATIONS
Mr Kendal said the legislation contained ‘very important issues which have very serious ramifications for all of us’.
He said that ‘importantly as far as the UK is concerned and likewise for the Isle of Man it makes no difference whether the function or activity is connected with or performed in the UK, the Isle of Man or abroad.
‘So it does not matter if the person you are bribing or is being affected, is here in Douglas or Dubai.
‘The fact he is abroad has no bearing on this offence. If this is what happens you are caught.
CIGARETTE PAPER
‘When you look at the statute and the way it is framed and phrased the wording is precisely the same, there is not a cigarette paper to put between the wording of these offences in the Isle of Man and our statute in the UK.’
Mr Kendal asked: ‘Is any promise or reward a bribe? Are the days of taking a client to Wimbledon a thing of the past? Can we go to the football together, can I take them on holiday somewhere? The answer is you might be able to and you might not be able to. Ask your lawyer.
‘Because what matters is the intention behind what is being offered and whether what is being offered is proportionate to the situation.
‘So no offence will be committed if a business spends money on hospitality or promotions provided that the intention behind it is not to induce or reward someone.’
Hannah Bradshaw, a London solicitor, talked about how to minimise the risks of non-compliance with the Bribery Act.
She said businesses in the island could take practical steps by:
l Assessing the risks of their business’s susceptibility to and from bribery.
l Draw up a comprehensive anti-bribery policy and procedures, keep these under review and test them.
l Foster a culture of zero tolerance from the management level down and communicate this internally and externally.
l Undertake careful due diligence before working with third parties.
l Reassess the risks when moving into new markets.
l Provide training.
Island advocate Mr Keenan said that apart from the one significant difference concerning public officials, the island’s Bribery Act is principally the same as the one in the UK. He said the island government’s guidelines were clear and to the point and very detailed.
He said: ‘Some people think that it is a new offence. Bribing someone, corruption is almost as old as the oldest profession, prostitution and soliciting.
‘In this case the Act focuses on obligations of the individuals . We can’t just sit by passively. Particularly those of you involved in administration, who are directors of companies etc.
‘We have many companies here who have a worldwide reach. And companies that operate in different cultures.’
He told of the US Navy’s seventh fleet embroiled in a ‘massive’ bribery investigation.
‘The bribery has been as simple as the logistics manager ensuring that the seventh fleet uses certain harbours and ports. This has become so pernicious in the US navy that the NCIS are also implicated in it.’
Mr Keenan said at the end of the day he implored firms to look at the legislation.
Lawyer Dan Hyde, who has specialised in high-value commercial fraud and complex city crime, addressed the audience on the subject of Interviews Under Compulsion.
Like Hannah Bradshaw he works for HowardKennedy Fsi. a high profile law firm in Central London. Barrister Tim Kendal is based inBedford Row, London.