24.06.20

Contributing to Corruption

Gavin Goffe
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Contributing to Corruption

In a recent poll conducted on Twitter, the following hypothetical question was asked: “If a police officer stops you for speeding, and then decides not to write you a ticket, but gives you a warning, and you ‘lef him a ting’ without him asking for it, do you see anything wrong with that?” Of the 564 persons who voted, an overwhelming 72% responded that that was wrong, whilst 20% saw nothing wrong and 8% were unsure. The correct answer is, unsurprisingly, ‘it depends’.

Under the Corruption (Prevention) Act (CPA), a public servant commits an act of corruption if he accepts any article, money or gift for doing any act, or omitting to do any act in the performance of his public functions. That’s commonly called a “bribe”, although the word itself doesn’t appear anywhere in the CPA. In contrast, a private sector employee commits an act of corruption if he accepts any gift as “an inducement or reward” for doing, or not doing any act, or for showing favour or disfavour to anyone in relation to his employer’s business. Likewise, a private sector employee commits an act of corruption if he offers or gives any gift to another company’s employee as inducement or reward to show favour or disfavour. In other words, in the language of the CPA, whose roots can be traced back to 1906, there is no clear prohibition on public servants accepting rewards for showing favour.

Whether a gift was intended to be a reward for doing or omitting to so something will depend on the circumstances of the case. In 1988, a magistrate in Trinidad & Tobago (T&T) was accused of breaching T&T’s Prevention of Corruption Act after accepting a gift of a new luxury car from a defendant the very day after he had acquitted that defendant of criminal charges. In his defence, the magistrate insisted that he had decided the case based upon the evidence before him and that the car was not a gift but rather a loan until he was able to sell his own car and repay the defendant. He was arrested 1 month after receiving the car and up to the point of his arrest, he’d made no attempts to sell his vehicle, which was also fairly new. The jury convicted both the magistrate and the man who purchased the car and they were each sentenced to the maximum of 2 years in prison plus a fine. On appeal, the Court upheld the convictions, observing that the word “reward” covered receipt of money for a past favour without any antecedent agreement. In T&T’s law at the time, both private and public sector employees were barred from accepting rewards.

The Staff Orders for the Public Service in Jamaica do not completely prohibit public servants from accepting gifts and tips. It says: “Officers, in their official capacity are forbidden to solicit or accept gifts or gratuities for the performance or neglect of official duties and responsibilities; Officers, may however accept small tokens of appreciation from customers or clients…” No examples are given of what constitutes a small token. Although businessman Bruce Bicknell was arrested and charged for attempting to bribe a traffic cop with J$2,000, that’s not particularly helpful to our discussion as (i) his was an inducement case (the money having been offered before the officer had done his job), not a “reward” case, and (ii) the corruption charges were eventually dropped. Consequently, it is at least arguable that a police officer who accepts a small sum of money from a motorist is not necessarily breaking the law if it cannot be proven that there was an antecedent agreement between them.

The CPA applies to all public servants as well as all companies whose policies the government can influence. Therefore, whenever a donation is made to any MP, it will attract scrutiny to determine whether the donor received any benefit or advantage, or could potentially receive such benefit or advantage in the future.

Because of the devastating economic impact of COVID-19, many businesses have been moved to make donations for those most at risk. Nevertheless, we must all remain vigilant about the manner in which and the vehicles through which we donate. Legitimate donations made to a registered and reputable charity or to PSOJ’s COVID-19 Response Fund, for example, are less likely to be problematic.

Similarly, it is advisable for companies to donate to political parties and candidates through the new National Election Campaign Fund, administered by the Electoral Commission of Jamaica. Candidates receive disbursements from the fund in direct proportion to the percentage of the votes they received in the election (subject to limits) and only if they have complied with the Political Code of Conduct, amongst other requirements.

If the poll results are anything to go by, most of us understand that something is wrong, if not unlawful, in handing money to a policeman and that we all have a duty not to contribute to corruption in our society.

Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is a member of the firm's Litigation Department. He may be contacted at gavin.goffe@mfg.com.jm or through the firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.