24.12.19

When will the giving and receiving of gifts land you on the naughty list?

When will the giving and receiving of gifts land you on the naughty list?

‘Tis the season of giving, but what giving will land you on the naughty list? It is customary during the Christmas season to give a token to public servants to show appreciation for their assistance throughout the year. Business owners and other private individuals may want to offer gifts to persons at the different public entities which provide efficient service to them. But when might giving or receiving gifts get you in trouble with the law?

The Corruption (Prevention) Act was created to eliminate bribery and corruption within the public service. It identifies circumstances where giving gifts to a public servant or receipt of gifts by a public servant could constitute an “act of corruption”.

A public servant includes any person who is employed in the public service or in the service of a statutory body or authority or a government company.

When is the giving or receiving of gifts considered an ‘act of corruption’?

A person commits an act of corruption if he offers or grants, directly or indirectly, to a public servant, any article, money or other benefit, being a gift, favour, promise or advantage to the public servant, for himself or another person, for doing any act or omitting to do any act in the performance of the public servant's public function.

If a public servant corruptly requests or accepts, whether directly or indirectly, any article or money or other benefit, being a gift, favour, promise or advantage for himself or another person for doing any act or omitting to do any act in the performance of his public functions, this is also considered an act of corruption.

The circumstances mentioned above contemplate a situation where both the giver and receiver of a gift may commit an offence under the Act.

It is the thought that counts

The provision of a gift to a public servant may not, by itself, be considered an act of corruption. The Act places some focus on the intention that a person has when giving a gift (or a promise or advantage) to a public servant or other party – that is, an intention to influence the public servant’s decisions or conduct.

It is important to note that the ability of the public servant to do, or to refrain from doing, the act requested, is immaterial. It also does not matter whether the act is carried out.

Does the amount matter?

Consideration must also be given to the value of the gifts. It is arguable that the greater the value of the gift, the more likely an inference will be drawn that a person is committing an act of corruption. A benefit given in a particular case may be so small that it cannot be considered a reward nor can it be viewed as intending to influence the behavior of a public officer. For example, giving a Christmas card to a public servant at the end of the year may not rise to the level of an offence under the Act. Given the nominal value of this item, it could be argued that this gift was not intended to influence the public servant in the performance of their function.

Some other common examples of gifts used to show appreciation in the Christmas season include fruit cakes and premium liquor. These gifts may not necessarily land you on the naughty list, however, the crux is whether these gifts are intended to influence the public servant to depart from the proper performance of their duties or as a reward for such a departure; or whether it influences the giving of a future advantage or rewards the giving of a past advantage.

Persons should be conscious about giving or accepting gifts when public servants are involved as it is possible that an inference may be drawn that the offeror or the recipient is committing an act of corruption.

Kerri-Anne Mayne is an Associate Attorney-at-Law at Myers, Fletcher & Gordon, and is a member of the firm's Commercial Department. Kerri-Anne may be contacted via Kerri-Anne.Mayne@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.