Following on from our last blog, the SFO has published revised statements of policy on its website dealing with facilitation payments, business expenditure (i.e. hospitality and gifts) and self-reporting which take immediate effect and revoke previous guidance. The new statements of policy are blunt.
Facilitation payments - the SFO has reiterated that these are illegal under the Bribery Act and that the SFO will apply the various established tests and guidance relating to prosecution to determine whether prosecution is appropriate, including whether prosecution is in the public interest. Previous SFO guidance suggested that it would not adopt as rigorous an approach towards facilitation payments as might have been supposed and appeared to recognise that there are circumstances in which an employee has no choice but to make a facilitation payment.
Business expenditure – again, the SFO refers to the various established tests and guidance it will use to determine whether prosecution is appropriate. However, helpfully, it has reiterated that “Bona fide hospitality or promotional or other legitimate business expenditure is recognised as an established and important part of doing business.”
Self-reporting – the SFO has said that there will be no presumption that companies which self-report will face civil, rather than criminal, penalties.
These new statements of policy reflect the change in the SFO Director from Richard Alderman to David Green. Mr Green has specifically said that the SFO is not there to provide guidance, its primary purpose is to investigate and prosecute.