0207 407 2356

Follow Us

The SFO issued their new guidance today (see our earlier article). Reaction has suggested that it is clearer but that companies face bribery crackdowns in line with the guidance.
The theme which runs through the guidance is that cases will be prosecuted where there is a "realistic prospect of conviction" and it is "in the public interest" to do so. Reference is made to the various Codes in deciding on whether to prosecute.
Facilitation payments, it is stressed, were illegal before the Act and remain so. The reference in the earlier guidance to facilitiation payments being endemic in some countries and it taking time to eradicate are no longer present.
Corporate entertainment is referred to under the new guidance and is described as “bona fide hospitality or promotional or other legitimate business expenditure is recognised as an established and important part of doing business.”  It points out that "It is also the case, however, that bribes are sometimes disguised as legitimate business expenditure." Interestingly the heading is "business expenditure" rather than "corporate hospitality" or "corporate entertainment".

Self Reporting is given much less emphasis than previously. The prospect of a civil resolution for self reporting companies is downgraded and  includes the following "Self-reporting is no guarantee that a prosecution will not follow. Each case will turn on its own facts."
The reasons for the revisions are given as being threefold; to re-state the SFO's primary role as an investigator and prosecutor of serious and/or complex fraud, including corruption; to ensure consistency with other proseuctors and to take forward certain OECD recommendations. No reference is made as to whether judicial criticism of the approach in relation to plea bargaining and sentence previously approaches taken by  the SFO was also a factor in their decision.

John Williams commented
"This seems to be the new director setting out his stall and reverting to the role of the SFO as an investigating and prosecuting authority rather than one which encourages, educates and advises companies to self report, seek advice and ensure their policies are in order. In my view the ancien regime appeared reluctant to incur the financial and political expense of embarking on risky prosecutions. The Q & A  section sets out "The SFO's primary role is to investigate and prosecute. The revised policies make it clear that there will be no presumption in favour of civil settlements in any circumstances." The Question & Answer section on advice sets out as follows:-

"Will the SFO communicate with corporate bodies about their past or future conduct?
The SFO encourages corporate self-reporting, and will always listen to what a corporate body has to say about its past conduct; but the SFO offers no guarantee that a prosecution will not follow any such report.
The SFO is primarily an investigator and prosecutor of serious and/or complex fraud, including corruption. It is not the role of the SFO to provide corporate bodies with advice on their future conduct."

Companies are therefore still likely to have to rely on their own advisers (preferrably external to ensure legal privilege protection). In my view the new guidance would provide little incentive for companies to self report, but as they say each case depends on its particular facts. Interestingly in the Q & A section it makes clear that any agreements entered into under the old policy will be honoured if it has been fully complied with. It sets out that companies do not need to be more nervous about corporate hospitality and places the emphasis for prosecution on disguising bribes as business expenditure. It is only if the case is a serious or complex one and that the provisions of the Code are satisfied that they will prosecute. As with other areas the Q and A section sets out that if the requirements of the Full Code Test are not established, the SFO may consider civil recovery as an alternative to prosecution. If prosecutions are brought which span the old and the new guidance it will be interesting to see what a jury has to make of this.

Whilst some aspects of the new guidance are to be welcomed I wonder whether the SFO will have the resources and the political will to pursue difficult prosecutions with uncertain outcomes."