黑洞社区

There was an eye-catching headline in the press last month: 鈥満诙瓷缜� industry admits it is corrupt鈥�. This followed the publication of the results of a recent survey by the Chartered Institute of 黑洞社区 (CIOB).

The survey found that 4% of respondents considered bribery to obtain a contract was not corrupt. Of the 96% who agreed that this practice was corrupt, 57% thought it was 鈥渧ery鈥� corrupt, 18% thought it was 鈥渕oderately鈥� corrupt, and the other 21% thought it was 鈥渘ot very鈥� corrupt. Which begs the question: what did the 39% of the respondents who replied that bribery to obtain a contract was 鈥渕oderately鈥� or 鈥渘ot very鈥� corrupt, mean?

It should be noted that the CIOB deliberately did not define what 鈥渃orrupt鈥� meant in the questionnaire. For our purposes we will assume that it refers to criminal activities relating to bribery, deception and fraud.

Did the respondents who stated that bribery was 鈥渘ot very鈥� or 鈥渕oderately鈥� corrupt really mean: 鈥渢his is sharp practice that is an undesirable part of doing business today鈥�. If so, then the results are indeed stunning. It means many in the industry are under an alarming misconception.

Bribery is a common law and a statutory offence under the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906, the Prevention of Corruption Act 1916 and the Anti-terrorism, Crime and Security Act 2001.

If you adopt the same interpretation of what 鈥渘ot very鈥� or 鈥渕oderately鈥� corrupt means, and apply it to other questions in the survey, it would mean that 60% would not consider collusion between bidders for market sharing purposes illegal and 46% would not consider fraudulent invoices as criminal behaviour. Yet collusion between bidders for market sharing purpose constitutes the common law offence of conspiracy to defraud. It is also an offence under the Enterprise Act 2002.

Fraudulent invoices fall under false accounting; it is not necessary to establish that a deception has taken place, or that any payment has been received as a result of these false documents. If the document is acted upon, this would fall within the offence of obtaining property by deception or obtaining a money transfer by deception.

The Corruption Bill, which was to receive its second
hearing last month, has been dropped

In addition, parties agreeing to act together to commit certain offences may be guilty of conspiracy; and anyone who aids, abets, counsels or procures the commission of any of the above offences, including lawyers, will commit the statutory offence of aiding and abetting. That the conduct in question was a prevalent or normal part of carrying out business is not a defence.

In short, if our speculation as to what the respondents probably meant when they said an activity was 鈥渕oderately鈥� or 鈥渘ot very鈥� corrupt is correct, then there is indeed a cause for concern, for individuals are clearly failing to appreciate that certain behaviour is criminal and that they may be subject to prosecution for it.

The survey also discloses that 41% of the respondents have been offered a bribe or an incentive to engage in a corrupt practice at least once, and 34% have come across cartel activity. These findings confirm that corruption in construction is alive and well.

What is the answer? The Corruption Bill, which would have tidied up the existing patchwork of statutory offences and provided a comprehensive code, was to receive its second hearing last month, but has been dropped. With or without further legislation, there seems to be an increasing clamour for an ethical construction industry, with transparent accounting.

The government鈥檚 role in promoting this objective is pivotal. But its approach to 鈥渇acilitation payments鈥� is not reassuring. It has said 鈥渨e do not envisage any circumstances in which the making of a small 鈥榝acilitation鈥� payment, extorted by a foreign official in countries where this is normal practice, would of itself give rise to a prosecution in the UK鈥�.

It seems, at least in relation to facilitation payments, a firm commitment to an ethical code of practice is somewhat lacking.