Working in partnership: a new public/private approach to tackle economic crime
As the debate on the “US college bribery scandal” rages in the media, this blog considers whether we are likely to see similar scrutiny here and where parents and guardians in the UK might fall foul of the law.
The Bribery Act 2010 is the UK’s flagship piece of legislation to tackle bribery and corruption akin to the US’s Foreign Corrupt Practice Act (FCPA).
The Act creates four offences to address bribery of all kinds in the both the public and private sectors. Two offences are based on the concept that bribery is an inducement to perform a function improperly: “active” bribery of offering, promising and giving of bribes and “passive” bribery of requesting, agreeing to receive or accepting bribes. There is also a corporate offence which holds commercial organisations to account for the failure to prevent bribery - the latter of relevance to education institutions themselves.
The Act’s impact extends across borders and those with a connection to the UK can be prosecuted for bribery or corruption committed overseas, including the US.
The “advantage” does not have to be financial, it does not matter if it is provided directly or through a third party and it is not a requirement for the person to whom the advantage is offered, promised or given is the same person as the person who is to perform, or has performed, the function or activity concerned.
Press reporting of bribery and corruption cases tends to focus on the big investigations and the settlements with global corporations, however this is not the complete picture and there are a range of circumstances where people may find themselves subject to a bribery investigation. In 2013 a postgraduate student at a UK university who failed to pass his dissertation was prosecuted for offering his professor a £5,000 bribe, which was refused. After pleading guilty to bribery (and a firearm’s offence) he was sentenced to 12 months’ imprisonment and ordered to pay £4,800 in prosecution costs. However, the impact of a conviction for bribery is likely to go well beyond the length of any sentence and could be an impediment to all sorts of areas including employment and career opportunities, ability to obtain a mortgage, credit, bank accounts or insurance, restrictions on the ability to travel to other jurisdictions and a requirement to disclose the conviction in a number of circumstances.
Schools, colleges and universities are in an increasingly competitive environment, particularly those that aim to maintain a profile in the top flight of educational institutions. As they seek alternative funding to supplement traditional forms of finance so that they are able to provide facilities and opportunities for students, the risks increase that generous donations and legacy payments or extensive hospitality could come under scrutiny.
It is a natural motivation to help and support our children. We give guidance on homework and join the PTA not [necessarily] because it is fun but in the hope that our investment of time will enrich our child’s experience and network. However, when it comes to significant contributions, whether financial or not, caution is required.
Parents, grandparents, aunties, uncles, siblings, guardians and friends motivated by altruism who want to make a financial or other contribution to an establishment can of course do so. Contributions made openly without expectation of explicit or implicit advantage will be gratefully received.
The payment of a significant financial sum or some other inducement to a school, college or university in order to secure a child’s future position (or avoid expulsion), however, is capable of being improper, and could render the donor and recipient liable to prosecution. Private arrangements with individual members of staff or third parties to circumvent admission criteria risk contravening the Bribery Act and related legislation.
This blog was co-authored by Jaya Narang in the Criminal Litigation Team.
Louise Hodges is head of the criminal litigation team at Kingsley Napley and is particularly well known for representing individuals and companies or institutions subject to criminal investigations for financial crime, in particular bribery and corruption.
Sandra Paul has a wealth of experience in criminal and related litigation. She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.
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