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.