UK Bribery Act: Serious Fraud Office publishes revised policies for facilitation payments, business expenditure and corporate self-reporting

An important announcement for multinational organisations with business links in the United Kingdom.

The Serious Fraud Office in the United Kingdom has published revised policies for facilitation payments, business expenditure and corporate self-reporting that take immediate effect.

The revised policies supersede the original directive on prosecuting facilitation payments and business expenditure published in the Bribery Act 2010: Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutionsand the guidance on corporate self-reporting published in the Guidance on Corporate Prosecutions.

overview

The Serious Fraud Office has issued the revised policies to restate its primary role as an investigator and prosecutor of commercial crime, to ensure consistency between the other United Kingdom prosecuting authorities and to meet further comply with the Organisation for Economic Co-operation and Development recommendations.

The revised policies demonstrate a tougher and more direct approach to combat bribery and corruption than previously published in the guidance notes to the United Kingdom Bribery Act. There has been a departure from the lenient approach to transgressions that were self-reported and it now appears that criminal charges instead of civil charges will be lodged. The revised policies provide a clear indication that more prosecutions can be expected in the near future.

facilitation payments

The revised policy for facilitation payments confirms that facilitation payments are bribes. Payments made or goods provided to perform, or expedite, a routine duty, irrespective of size or frequency, are illegal under the United Kingdom Bribery Act.

business expenditure

The revised policy for business expenditure confirms that legitimate business expenditure is a critical and important part of doing business and that bona fide hospitality, promotional or other legitimate business expenditure will be allowed. The Serious Fraud Office has recognized that bribes are often disguised as legitimate business expenditure and that business expenditure may be scrutinized to ensure that its legitimate.
 
corporate self-reporting

The revised policy for corporate self-reporting restates the primary role of the Serious Fraud Office as an investigator and prosecutor of commercial crime. The role of the Serious Fraud Office is not to provide guidance to organisations on their future conduct. The revised policy encourages corporate self-reporting but emphasises that self-reporting will not indemnify an organisation from prosecution by the Serious Fraud Office. The revised policy emphasises that corporate self-reporting must form part of a comprehensive and proactive approach that is led by the organisations management team. If the Serious Fraud Office decides not to prosecute reported transgressions it can still prosecute unreported transgressions and share information on these transgressions with other law enforcement authorities (including foreign authorities).

prosecution

The Serious Fraud Office will determine whether to prosecute based on the three key criteria:

1. the seriousness and complexity of the commercial crime;
2. the transgression falls within the mandate of the Serious Fraud Office; and
3. determining whether there is sufficient evidence to prosecute and in the public interest after applying the two-stage Full Code Test for UK Crown Prosecutors (determining whether an offence has been committed, and that the offender should be prosecuted).

The Serious Fraud Office may decide as an alternative to prosecution to use its asset recovery powers under the Proceeds of Crime Act. This would result in the recovery of proceeds from unlawful conduct.