The Serious Fraud Office (SFO) has published new rules this week saying that it will prosecute under the Bribery Act 2010 based solely on the law rather than according to its previous guidance, which it removed from its website recently.
It also stresses that the new statement of policy has immediate effect and supersedes any statement of policy or practice on self-reporting previously made by or on behalf of the SFO.
In the guidance, the SFO acknowledged that facilitation payment, such as paying a functionary to do a small job, is a way of life in some countries and said that it would take the circumstances into account and the scale of payments before deciding whether or not to prosecute. However, the new rules simply say that a “facilitation payment is a type of bribe and should be seen as such.”
While as far as corporate hospitality is concerned, the previous guidance took into account whether the company has rules on entertaining, how much it spent and how the expenditure was recorded. But now the decision on whether or not to prosecute will hinge on whether there is “a realistic prospect of conviction” and whether it is “in the public interest to do so.”
The last area to have changed is how the SFO will deal with companies that self-report corruption, saying that it will prosecute if it is in the public interest to do so and that just because a company reports itself, it does not mean that the agency will not prosecute, although that will be “a relevant consideration”.
In appropriate cases the SFO may use its powers under proceeds of crime legislation as an alternative, or in addition, to prosecution, and if the SFO uses its powers under proceeds of crime legislation, it will publish its reasons, the details of the illegal conduct and the details of the disposal.