On 9 October 2012 the Serious Fraud Office announced a revision of its guidance to the Bribery Act 2012. The new policy, which covers facilitation payments, corporate hospitality and corporate self-reporting (not coincidentally three of the most controversial issues to have arisen from the Act), represents a marked departure from the SFO's erstwhile approach to corruption. Responding to the suggestion by the Organisation for Economic Cooperation and Development that its definition of self-reporting "may be overly generous", the new policy offers fewer crumbs of comfort to firms which self-report breaches of the Act. Indeed, while firms are still encouraged to self-report the "policies make it clear that there will be no presumption in favour of civil settlements in any circumstances." The SFO's previous desire to settle self-reported cases "civilly wherever possible" has therefore been binned in favour of a decidedly more hard-nosed approach.
Similarly, the SFO's previous acknowledgement that facilitation payments are endemic in many countries, and will take time to eradicate, has given way to a simple confirmation that facilitation payments are bribes "and should be seen as such". Legitimate corporate hospitality remains perfectly acceptable, but the SFO has reminded firms that bribes may be disguised as legitimate expenses.
What does this new policy mean in practice? It is important to note that the Bribery Act 2010 has not changed - this is a shift in approach by the prosecutor not the legislator. Firms ought to have appropriate anti-corruption policies in place by now, and the SFO's new policy will not generally require substantive redrafts of these policies. What is important is what this policy shift signals. Specifically, we are witnessing Director David Green's repositioning of the SFO as a police force and a criminal prosecutor first and foremost, rather than the regulator which previous incumbent Richard Alderman tended to promote. In line with this repositioning, firms can expect more aggressive inquisitions should they self-report breaches of the Act. Furthermore, if the rhetoric is to be believed, the threat of criminal prosecutions has just increased. It is therefore doubly important that firms ensure their anti-corruption policies are fit for purpose and complied with by all relevant staff.
The new policy has been described as a "shot across the bows" of UK plc - it would do well to pay heed.