Richard Alderman, Director of SFO, and Chris Walker, Head of Policy, spoke separately on SFO’s approach to the Bribery Act. They confirmed that the “Directors' Guidance” issued by the Director of Public Prosecutions and the Director of SFO would hopefully be issued on the same day as the Ministry of Justice guidance. The Directors’ guidance will discuss the various offences and what needs to be proved and also the public interest considerations the prosecutors will have to consider. They stressed:
- the adequate procedures defence to the offence of failing to prevent bribery is a complete defence, not a measure of mitigation, and that if bribery occurs this does not necessarily mean the procedures were not adequate. The new offence is far better than the old test which required proof that the “controlling mind” of a company was involved in bribery;
- the Government is still considering whether conviction of the failing to prevent a bribery offence will bring about mandatory exclusion from public works contracts in the EU;
- the SFO takes a broad view of what will be considered to be “carrying on business in the UK”, but this will be for the courts to decide. SFO is minded to act to prosecute a company from a third country which gains a business advantage over a UK company by paying a bribe, if that company then does business in the UK;
- joint ventures: SFO is sympathetic to the limits on what companies can do to protect themselves in existing joint ventures, but expects new joint ventures to include detailed negotiations on partners’ standards;
- hospitality: companies know very well already what is lavish and excessive, but SFO recognises there are areas which concern companies, such as taking clients to sporting events, and SFO is considering providing guidance on this; and
- facilitation payments: these are clearly bribes and illegal under current law. Many corporates have nevertheless achieved zero tolerance, and their employees are not hassled because it is well known they will not pay bribes. But SFO would be sympathetic in cases of emergency and where companies are trying to adopt a zero tolerance policy.