Fiduciary Group aspires to the highest level of ethical conduct and values its reputation for ethical behaviour. We recognise that over and above the committing of any crime, any involvement in bribery will reflect adversely on our reputation and image. Fiduciary Group is committed to achieving the highest standards of ethical conduct and to ensure that its lawyers, employees and others who may provide services on its behalf, act in compliance with relevant legislation. This includes compliance with all laws, domestic and foreign, prohibiting improper payments or inducements to any person.
Fiduciary Group has a zero tolerance to bribery. This is stated in our Terms of Business. Senior management must establish an effective commitment to prevent bribery taking place. This means implementing a culture in which bribery and corruption are never acceptable.
A bribe is a financial or other advantage, promised, requested or given to induce a person to perform a relevant function or activity improperly, or to reward them for doing so.
In practical terms, a financial or other advantage is likely to include cash or cash equivalent, gifts, meals, entertainment, services, loans, preferential treatment, discounts or anything else of value.
The timing of the bribe is irrelevant and payments made after the relevant event will still be caught, as will bribes that are given or received unknowingly. It does not matter whether the act is done directly or indirectly and whether the bribery occurs in Gibraltar or abroad, as long as a Fiduciary Group staff member commits an act that would constitute one of the three main bribery offences1 in Gibraltar which are:
1. s.566 Crimes Act 2011 [bribing another person]
2. s.567 Crimes Act 2011 [being bribed] and
3. s.571 Crimes Act 2011 [bribery of foreign public officials].
It is not necessary for the individual or Fiduciary Group to actually receive any benefit as a result of the bribe.
Fiduciary Group faces two major risks in relation to anti-bribery and corruption
1. That someone within Fiduciary Group inadvertently or purposefully offers or gives a bribe to anyone; or
2. That someone within Fiduciary Group inadvertently or purposefully solicits or accepts a bribe from anyone
This policy aims to prevent those risks by making staff aware of (i) what constitutes a bribe and (ii) when a gift offered to or received from someone will not be considered to be a bribe and can lawfully be given/received.
Fiduciary Group prohibits: the offering (including promising), giving, soliciting or accepting any bribe, whether cash or other inducement.
To or from: any person or company, wherever situated and whether a public official or body or private person or company.
By: any individual employee, agent or other person or body acting on Fiduciary Group’ behalf.
In order to: gain any financial or other advantage for Fiduciary Group in a way which is unethical, or otherwise induce a person to perform improperly or reward a person for improper performance.
Or in order to: gain any personal advantage, money related or otherwise, for the individual or anyone connected with the individual.
A key test is therefore to think about whether Fiduciary Group is obtaining a financial or other advantage or whether it is offering this to someone, and whether there is some promise in return for this advantage or some actual thing given in return for this advantage. It would be “improper” to gain a financial or other advantage in these circumstances.
It is perfectly fine to use the same service provider if that person provides the best service over competitors, but it would be improper to choose a service provider only because they offer other incentives (whether cash, commissions, event tickets, physical gifts etc.).
One example to aid understanding is that commission payments would be unlawful if a court found that the intention was to obtain business (that would not otherwise be obtained) by way of the commission.
e.g. Someone says to Fiduciary Group “if you give me 10% of what you make from clients I introduce to you for 2 years, I will send lots of clients your way and I promise that I won’t send them to firm X instead”
So in this example, where someone promises to give more business and more clients to Fiduciary Group, if Fiduciary Group gives them commissions in return, that would probably constitute the offering of a bribe to the person by Fiduciary Group, and at the same time the acceptance of a bribe by the person. Fiduciary Group is gaining a commercial advantage of getting more clients (over firm X and probably other competitors) and the person is gaining a financial advantage by accepting the money paid by way of commission.
When something is not a bribe (and can be considered a gift/hospitality)
This policy is not meant to prohibit the following practices which are customary in our business, provided they are proportionate, disclosed and properly recorded:
- Normal and appropriate hospitality such as an invitation to a festival, event or other special occasion, even if during the course of business. For example:
a. where you are inviting a client to a meal to discuss a matter you are working on, provided that intention is not to seek more business or another advantage from the client;
b. events held in appreciation of clients’ support - sporting occasions, Christmas parties etc. need not be disclosed.
c. you are invited to a corporate hospitality event for special guests (e.g. a golf day or an ‘experience’ event such as race car driving, hot air balloon, sailing, wine tasting etc.)
d. you are invited for a meal to discuss business provided always that these items/gestures of hospitality are not worth over £100, or could otherwise be deemed excessive in the context of the relationship (e.g. such as when there is no previous business relationship at all), in which case you may be able to justify accepting it, but you should disclose this to Fiduciary Group and seek prior approval before accepting it.
- Normal and appropriate receipt of a gift. A gift may include a loan, accommodation, event or other entertainment tickets, or an item of property for the benefit of you or your family. You do not need to disclose gifts received, even if during the course of business where these are of low value and are unlikely to be seen to influence your decision-making and acting in the bests interests of the client. For example:
a. where you are given a gift voucher for a meal at an expensive restaurant
b. you are given event/concert tickets
c. where you are given a bottle of wine
Provided always that these gifts are not worth over £50, in which case you may be able to justify accepting it, but you should disclose this to Fiduciary Group and seek prior approval before accepting it.
Risk Assessment and Procedures
Fiduciary Group regularly carries out a risk assessment identifying and prioritising anti-corruption risks. This includes an evaluation of the markets for its particular services, the extent to which it uses third parties to act on its behalf, and the degree of interaction with Public Officials.
Fiduciary Group understands that additional issues of control exist where a business has operations outside of Gibraltar, particularly where it does business in regions where bribery and corruption are more common. The Corruption Perception Index (CPI), published by Transparency International2 (TI), ranks countries according to the perceived level of public sector corruption. The index, which ranks 180 countries and territories by their perceived levels of public sector corruption according to experts and businesspeople, uses a scale of 0 to 100, where 0 is highly corrupt and 100 is very clean. In 2017, the index found that more than two-thirds of countries score below 50, with an average score of 433. Where Fiduciary Group does business in, or with, countries that appear lower in the table it should consider what additional anti-corruption checks and measures are appropriate.
Common sense should prevail in the application of the policy. In some parts of the world extortion and even kidnapping are not unknown. In most cases you should take appropriate advice from the Compliance Department, but where there is a threat to personal safety, the overriding objective must be to ensure the individual concerned is unharmed, and if a payment is necessary to achieve this it is presumably very unlikely that regulators or even law enforcement would take any action.
Extra-territoriality of the Bribery offence under Gibraltar legislation
Much like the UK Anti-Bribery legislative regime, Gibraltar legislation introduces “extra-territoriality” under s. 577 of the Crimes Act 2011, meaning an offence can be committed if the ingredients that make up the offence are made out and take place outside Gibraltar, and if the person who commits the offence has a “close connection” with Gibraltar. For these purposes a close connection is defined in s577(3):
“a person has a close connection with Gibraltar if at the time when the acts or omissions were done or made, the person was–
(a) an individual who was a British person or a Gibraltarian; or
(b) a body incorporated under the law of Gibraltar.”
Clearly Fiduciary Group is a body incorporated under the law of Gibraltar, so any staff member acting on behalf of Fiduciary Group can commit a bribery offence even if they are abroad, and proceedings for the offence may be taken in Gibraltar. This extra-territoriality applies to the 3 main bribery offences outlined above.
What are indicators of bribery
Common indicators of bribery and corruption include those listed below. There may well be others:
- payments are for abnormal amounts or purposes (e.g. commission), or made in an unusual way, e.g. what would normally be a single payment is made in stages, through a bank account never previously used, or in a currency or via a country which has no connection with the transaction.
- process is bypassed for approval or sign-off of terms or other commercial matters, or we are prevented from or hindered in monitoring commercial processes.
- individuals are secretive about certain matters or relationships and/or insist on dealing with them personally; they may make trips at short notice without explanation, or have a more lavish lifestyle than expected.
- decisions are taken for which there is no clear rationale.
- records are incomplete or missing.
1 In formulating this policy, we have had regard to the anti-bribery legislation found in the Crimes Act 2011 (http://www.gibraltarlaws.gov.gi/articles/2011-23o.pdf). Other offences (other than the three main bribery offences) exist such as s.572 [Failure of commercial organisations to prevent bribery].
2 https://www.transparency.org/ www.transparency.org/cpi