Bribery and Fraud - Definitions and Interpretations

What is bribery?

Bribery is the offering, promising, giving, requesting, or accepting of a financial or other advantage with the intention to induce or reward improper performance.

 

Under the 2010 UK Bribery Act, on which the University’s policy and guidance is based, bribery is a crime identified via a number of specific offences that are outlined below. It is not a new crime – the 2010 Act simply states the latest piece of applicable UK law; with many countries also having similar legislation.

The law applies to any person or organization based in the UK and covers all of their activities, wherever they take place in the world. It also applies to any foreign person or organization who operates within the UK.

Under the Bribery Act it is an offence to:

a)    Offer, promise or give bribes (section 1 of the Act)

If the intent exists and an offer or promise is made then, even though nothing may have changed hands, this is sufficient. Nor can the law be side-stepped by getting someone else to offer the bribe on your behalf since the Act also makes it an offence for an agent or associated person, acting on your behalf, to pay or offer a bribe.

b)    Request, agree to receive or accept a bribe (section 2 of the Act)

As with the offer or promise of a bribe, a request is sufficient to constitute an offence without anything having changed hands. A bribe may take any form, size or value: it is not necessarily monetary and there is no minimum threshold below which the law does not apply.

c)    Bribe foreign public officials (section 6 of the Act)

In addition to the general offence of offering, promising or giving a bribe, there is also a specific offence of bribing a foreign public official. Bribes to public officials may be referred to as facilitation payments.

The Bribery Act also introduced a new corporate offence of failing to prevent bribery by persons associated with it (section 7 of the Act). In addition, if senior officers were to allow bribery to take place within the University, this would be an offence under section 14 of the Act.

 

Improper performance

Improper performance is a failure to perform a function or activity in good faith, impartially or in accordance with a position of trust. This can include not performing the function at all, performing it incompletely, or only performing it in return for facilitation payments. In deciding whether a function or activity has been performed improperly outside the UK, the Bribery Act directs that any local custom or practice must be disregarded unless it is permitted or required by the written law of the country in which it is performed.

What is fraud?

Fraud is an act or omission made with the intent of making financial or property gain (or causing financial or property loss).

 

Fraud can be committed by individuals or by organizations. Under the Fraud Act 2006 there are three specific offences:

 

  1. Fraud by making false representation (Section 2)
  2. Fraud by failing to disclose information (Section 3)
  3. Fraud by abuse of position (Section 4)

Points to note concerning ‘gain’ or ‘loss’:

(a) In terms of fraud, ‘gain’ or ‘loss’ relates only to money or property, but includes in addition to tangible property both personal and intangible property as well – thus intention to deprive someone of intellectual property could be covered within this definition.

(b) The gain or loss need not be permanent – temporary deprivation of another’s money or property is still an offence, even where the intent extends to returning the money or property afterwards.

 


Who are associated persons?

Any person, company, other organization or legal entity that performs a service in the University’s name, represents the University in an official capacity, acts on its behalf or acts in place of other University staff or representatives.

 

This broad definition includes:

- members of staff or employees of the University and its subsidiary companies;
- majority or wholly owned subsidiary companies of the University;
- agents, sub-contractors, associates and consultants;
- partners and collaborators in joint ventures;
- recipients of grants from the University;
- suppliers of fundraising, professional and other services.

In certain circumstances, the following groups can also be considered ‘associated persons’:

Students

Although members of the University, students generally are not considered to fall within the definition of ‘associated persons’ because their study, for which they pay fees, is not a service provided to the University, nor does student membership require the student to act formally on behalf of the University or act officially in any representative capacity.

Students may become ‘associated persons’, for the purposes of the Bribery Act and University Policy, however, under the following circumstances:

(a) When they undertake work for the University that is not a normal part of their course of study. For example:

- undertaking paid laboratory supervision work for a department;
- contributing to funded University research projects;
- other part-time or casual work for a department.

(b) When they act in a formal or official representative capacity for a University body. For example:

- participating in an official sports team that competes in the University’s name;
- performing in an official University theatre company or orchestra;
- membership of formal University committees.

‘Associated person’ status applies in these circumstances only for the duration of the activity concerned or in respect of any matter arising from participation in that activity.

Visiting academics, speakers and lecturers

Academics, speakers and lecturers who are not formal members of the University, but who may be invited to give lectures, teaching, coaching, instruction or other services on behalf of the University are ‘associated persons’ to the extent of their work for the University and any matters arising from this association.

External members of committees, panels or boards

Individuals who are not formal members of the University but who are invited to sit on formal University committees, panels or boards are ‘associated persons’ to the extent of the role they perform for the University and any matters arising from this association. In addition to committee membership, this could include:

- membership of the directorial board or management committee of a University subsidiary company;
- participation in any panel or group convened for the purposes of employment or supplier selection;
- membership of any formal advisory board (from elsewhere in academia, the community, industry, etc.)


What are facilitation payments?

Payments to a public official intended to secure or expedite routine or necessary government or official action.

 

In other words, they give you access to or speed up something to which you are entitled anyway. Facilitation payments usually take the form of cash and often involve public officials.

Examples of facilitation payments include any small extra payment to:

- speed up a decision on a licence, visa, application, etc.;
- obtain swift passage through an airport or border;
- get goods released from customs;
- ensure connection of utilities or essential services;
- ensure security from police officers or law agencies.

Who are public officials?

A public official is anyone in a position of official authority that is conferred by a state, i.e. someone who holds a legislative, administrative, or judicial position of any kind, whether appointed or elected.

Common examples include:

- government ministers and civil servants;
- local government members and officials;
- the police and other security agencies, such as immigration and border control;
- the armed forces; etc.

The definition also extends to include officials or agents of public international organizations and in some cases will also cover individuals who at first sight do not appear to fall within the definition or who do not necessarily consider themselves to be public officials. Generally, the following should be treated as public bodies and their staff, therefore, as public officials:

  • ‘QUANGOS’ (the Law Commission, British Library, Civil Aviation Authority, etc.)
  • world bodies (the World Bank, Red Cross and International Standards Organization)
  • commercial and other bodies in countries where enterprise is largely state-owned, most notably China
  • Universities and research institutes in countries where these organisations are considered to be state bodies

If there is any doubt then it is always safer to treat individuals and organizations as though they were public officials.

What is an appropriate gift?

Appropriate gifts and hospitality have an acceptable form and value that is proportionate to the circumstances; they are offered openly, with legitimate intent and no specific expectation of return but are equivalent to what might be provided in return; their exchange should not be a cause for concern if published in the public domain.

 

In considering the offer or receipt of gifts or hospitality, University staff and representatives are encouraged to use the following checklist to help determine whether an offer is appropriate:

What is the form of the gift or hospitality?

Cash or equivalent vouchers, credit, personal discounts, etc. should never be accepted or offered since there are likely to be tax implications and there may also be an appearance (or reality) of bribery, fraud or corruption. Similarly, hospitality of an illegal or improper nature is not acceptable.

What is the actual or estimated value?

Disproportionate or lavish gifts and hospitality should be avoided – taking into account the reason why or circumstances in which it is being offered, is it of an appropriate value to the occasion?

How and when is it offered?

Offers made immediately prior to or during a decision-making process that might affect the person making the offer, or offers made in a manner that is not open and transparent are unlikely to be legitimate gifts or hospitality and may breach not only this University Policy but also criminal law.

What is the intent?

The building or maintenance of academic, collaborative, professional or business relationships is usually acceptable; what is not acceptable is where the underlying intent is to exert undue influence on a decision, activity or outcome or to induce someone to act improperly.

Is there any expectation of a return?

Gifts and hospitality should be freely given in order to avoid the appearance of undue influence and inducement – if there is the expectation of a specific return, other perhaps than reciprocal gifts and hospitality (see below), then the situation should probably be avoided.

What if the situation were reversed?

Is the offer equivalent to what might reasonably be provided in return? i.e. the type of gifts or hospitality that you accept should be similar to the type that would be offered by the University. If there is a significant imbalance between what is offered by each party this can create the appearance of undue influence or inducement on the part of the party offering the ‘bigger’ or ‘better’ gifts and hospitality.

How would it look in the public domain?

Would you be content if the details of the item(s) in question appeared in the public domain? If you saw an article about someone else offering or accepting gifts or hospitality in similar circumstances, what would be your reaction? If your answer to these questions is negative then this is a strong indicator that the item may be inappropriate.


Considerations and guidance when using this checklist:

University staff and associated persons may find themselves involved with third parties who have a different cultural perspective or more relaxed attitude towards gifts and hospitality. There may be pressure, therefore, to accept offers in order not to cause offence, or to offer gifts and hospitality in return so as to avoid embarrassment. As a fundamental principle, however:

University staff and associated persons should never put themselves in a position where their integrity could be called into question.

The checklist provided above should be used to help determine whether a gift or hospitality is appropriate but, where there is any doubt, University staff and representatives should err on the side of caution and:

(a) not accept or offer gifts or hospitality that could create any suspicion or appearance of a conflict between official duties and personal interests; and

(b) not accept or offer gifts or hospitality that may give an outward impression of having influenced the activities or decisions of the recipient or others.

Gifts or hospitality of an inappropriate nature should be politely declined or returned with, where appropriate, an explanation of the University Policy and why it is not possible to accept the offer.

Where it is not possible to determine whether a gift or hospitality is appropriate, or not possible to decline an offer without causing serious offence, the matter must be referred to the Head of Department who will determine whether it is appropriate or not. Where this is impractical or where the Head of Department cannot decide, the matter should be referred to the Registrar who will have final judgement on the matter.

 

The University's Gifts and Hospitality Policy.

When is a gift not a gift?

Gifts or hospitality given in part payment or instead of a fee for services provided do NOT generally fall under the requirements of the Gifts and Hospitality Policy.

 

Payments in Kind

The Policy defines gifts and hospitality as property, consumables, services, entertainment or money for which no reasonable fee is paid. Where the gifts or hospitality are themselves provided instead of a fee that might otherwise have been paid, however, then they should be considered as payments in kind and not subject to the requirements of the Gifts and Hospitality Policy.

Other University rules on authorization, value for money, etc. still apply, but it is not necessary to record such items in the Gifts Register or to seek approval if they exceed the £100 threshold.

Examples include travel, accommodation and/or meals provided to speakers at conferences in place of a fee. This includes both Oxford staff speaking at conferences elsewhere and individuals who come to Oxford to speak at conferences hosted within the University.

Exceptions

If the payment in kind is unreasonable or disproportionate to the circumstances (for example, luxury travel and accommodation, inclusion of family, etc.) then it is unlikely to be acceptable under the terms of the Bribery and Fraud Policy.