We always suspected that the arrival of David Green at the SFO in April would herald a new era at the beleaguered agency. The publication by the SFO on Tuesday of revised policies on facilitation payments, business expenditure (hospitality) and corporate self-reporting is entirely consistent with that expectation.
Whilst the SFO is at pains to point out that these policies merely reflect a restatement of the SFO’s primary role as an investigator and prosecutor of serious or complex fraud, including corruption, this is more than a change of emphasis.
Decisions whether to prosecute in respect of facilitation payments, hospitality and unlawful activity by self-reporting corporates will be governed by the Full Code Test in the Code for Crown Prosecutors and the applicable joint prosecution guidance.
In case you were in any doubt, the guidance states explicitly that self-reporting is no guarantee for the self-reporting company that a prosecution will not follow.
Even if the company escapes prosecution following a self-report, the SFO may still flex its civil recovery muscles under POCA and may also provide information on the reported violation to other bodies (such as foreign police forces) where it is lawful for it to do so.
Accordingly, corporates who uncover evidence of unlawful conduct within their organisations should be under no illusion that, should they choose to engage with the SFO by self-reporting such conduct, they expose themselves to the full range of the SFO’s powers.