In new rules published today the SFO said it would prosecute under the Bribery Act based solely on the law rather than previous guidance issued after the new law was introduced in July 2011, reports The Telegraph.
The policy covers the SFO’s approach to corporate hospitality, facilitation payments and self-reporting. In guidance issued today the SFO said it would prosecute corporate hospitality and facilitation payments “if there is a realistic prospect of conviction”.
The statement marks a radical departure from previous guidance which stated the SFO would take into account factors such as whether the company has a policy on such matters and the scale of payments before deciding whether or not to prosecute.
The SFO had previously acknowledged that facilitation payments, small payments made to ensure public officials carry out functions they should normally do, were endemic in some countries and so would take time to eradicate. The new guidance simply states: “A facilitation payment is a type of bribe and should be seen as such.”
On corporate hospitality the new test for whether or not a company will face prosecution will rest with whether or not there is “a realistic prospect of conviction” and “it is in the public interest to do so.”
Previously the SFO had assured companies it would take into account factors such as whether a company has rules about entertaining, whether the expenditure is proportionate and how the expenditure was recorded by the company.
Although the rules have been changed the SFO has attempted to reassure companies that under its new policy, “bona fide hospitality or promotional or other legitimate business expenditure is recognised as an established and important part of doing business.”
The final area to have changed is the approach the white-collar crime agency will take to companies that self-report corruption. Whereas under the previous director, Richard Alderman, the SFO had worked to reassure companies they would only be pursued under civil law if they report wrongdoing, the new rules are far more black and white.
“If on the evidence there is a realistic prospect of conviction, the SFO will prosecute if it is in the public interest to do so… Self-reporting is no guarantee that a prosecution will not follow. Each case will turn on its own facts.”
