The UK's Serious Fraud Office (SFO) has revised its policies on facilitation payments, business expenditure (hospitality) and corporate self-reporting, it was announced yesterday. This follows the removal last week of the previous guidance on these issues from the SFO's website.
In a press release, the SFO stated that its new Director, David Green, wished 'to re-emphasise that all decisions to prosecute unlawful activity will be governed by the Full Code Test in the Code for Crown Prosecutors and the applicable joint SFO/CPS prosecution guidance'.
All of the new policies state that 'in appropriate cases the SFO may use its powers under proceeds of crime legislation as an alternative (or in addition) to prosecution'.
Today's press coverage suggests that the new policies represent a significant shift in stance by the SFO. We do not agree. The new policies do not replace the statutory guidance published by the Ministry of Justice last year, which specifically refers to facilitation payments and corporate hospitality.
The SFO's previous guidance on self-reporting focussed solely on overseas corruption. By contrast, the new guidance on self-reporting applies to all corruption. The previous guidance had stated that the SFO wanted to 'settle self-referral cases...civilly wherever possible'. The new guidance is less explicit in offering the prospect of a civil as opposed to a criminal outcome to corporates who self-report historic corruption to the SFO.
However, the ability of the SFO to offer civil settlements has not changed. The Joint Prosecution Guidance of the Director of the SFO and the Director of Public Prosecutions on the Bribery Act 2010, which the SFO will continue to follow, states that 'a genuinely proactive approach involving self-reporting and remedial action' will be a factor tending against prosecution.
We believe that, for companies faced with potential corruption issues, having a dialogue with the SFO is still a viable option, and is an option which offers the prospect of a company being treated more leniently.
The revised statements of policy can be found on the SFO's website:
For commentary and updates on enforcement see our Enforcement Trends Table.
You may also be interested in ourSFO Investigations Tracker.