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The Serious Fraud Office ("SFO") is in the process of
reviewing its published guidelines in relation to facilitation
payments, hospitality and self-reporting. One of the major
criticisms of the Bribery Act is that there is insufficient clarity
as to what is reasonable and proportionate in relation to corporate
hospitality, so any light that can be shed on the matter will be
very welcome. For many it will also be of great interest to hear
what the SFO has to add in respect of facilitation payments. As we
have discussed, the Government has consulted on deferred
prosecution agreements (see our
previous e-update), so the removal of the self-reporting
guidelines may be in anticipation of a new deferred prosecution
regime. While the SFO guidance does not have the status of
law, it does provide an indication as to how the SFO will pursue
investigations and prosecutions in the future.
The SFO has informed us that the new guidance is in the process
of being drafted, but were unable to provide an indication as to
when it would be published on their website. In previously issued
Joint Prosecution Guidance from the Director of the SFO and the
Director of Public Prosecutions ("DPP"), the SFO's
position on facilitation payments was made very clear. They stated
that under the Bribery Act 2010 "[t]here is no exemption
in respect of facilitation payments. They were illegal under the
previous legislation and the common law and remain so under the
Act." Further, the guidance stated that
"[p]revention of bribery of foreign public officials is a
significant policy aspect of the Act", and accordingly
there would be a strong likelihood of prosecution where such
conduct is discovered.
In respect of hospitality the SFO Director, together with the
DPP set out that hospitality that is proportionate and made in good
faith "is an established and important part of doing
business. The Act does not seek to penalise such
activity."
It will be interesting to see if the SFO changes its stance from
earlier published guidance. We have previously reported that there
is a new tough tone from the top with the new Director of the SFO,
David Green, at the helm (see our
previous e-update). This may be an opportunity for further
reinforcement of the very clear message coming from the SFO that
bribery in whatever form, whether by way of facilitation payment or
over generous hospitality, will not be tolerated.
Anyone who is considering self-reporting (discussed in more
detail in a
previous e-update) at this time would be wise to wait to
re-evaluate that decision in light of the current vacuum of SFO
advice. In the absence of any information as to how a self-report
will be considered it would be prudent to await further information
from the SFO.
The material contained in this article is of the nature of
general comment only and does not give advice on any particular
matter. Recipients should not act on the basis of the information
in this e-update without taking appropriate professional advice
upon their own particular circumstances.
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The right of a person to discuss certain matters with their lawyer, no matter how nefarious, without fear of their confidence being broken is one that has been recognised since the 16th Century.
The ramifications for those found to be in civil contempt (as presided over by the High Court), and, in particular, the court’s power to enforce such a finding against a contemnor who resides overseas, are more far reaching than many (civil) lawyers realise.
The Bribery Act has made the news again following the conviction of a would be taxi driver. Earlier this week, at Minshull Street Crown Court in Manchester, Mr Mawia Mushtaq became the second person convicted of an offence under the Bribery Act by attempting to bribe a Licensing Officer.
In the previous edition of Corporate Focus we reported that the Bribery Act 2010 (the Bribery Act) came into force on 1 July 2011 and we considered procedures that commercial organisations could put into place in order to prevent bribery.
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