What does 2013 hold for the UK´s bribery law?

Posted 7th January 2013

Written by Scott Simmons

‘We are investigators and prosecutors. We are not here to offer advice, to preach or to make moral judgments. I am not on a crusade…There is oodles of guidance out there.’

If that statement from the new Serious Fraud Office (SFO) Director, David Green QC, is anything to go by, then a change of stance is most definitely on the cards this year.  Mr Green has given some clear indications that the SFO will seek to prosecute offenders of the Bribery Act (the Act) rather than opt for civil settlements.

What may surprise most business owners is the tone taken in the recently revised SFO Guidance (the Guidance) on self-reporting.  In the Guidance, the SFO states that, if on the evidence there is a realistic prospect of conviction, the SFO will prosecute if it is in the public interest to do so.  “The fact that a corporate body has reported itself will be a relevant consideration to the extent set out in the Guidance on Corporate Prosecutions”.  For a self-report to be taken into consideration as a public interest factor tending against prosecution, it must form part of a genuinely proactive approach adopted by the corporate management team when the offending comes to light.

“Self-reporting is no guarantee that a prosecution will not follow. Each case will turn on its own facts”.

Previously, the SFO had taken the rather more pragmatic view that if corporates self-reported corruption, it could avoid protracted investigations, which in the past had brought little success, and offered the company in question the prospect of a civil, rather than criminal, outcome (unless the circumstances were such that prosecution could not be avoided).  This had encouraged companies to come forward and deal with past corruption.  This new stance may actually lead companies to close ranks and sweep the misdeeds under the rug in the hope that either the SFO will not have the resources to go looking itself or it is not tipped off by a competitor or whistleblowing employee.

No-one is suggesting that all companies that self-report past corruption should get away with a slapped wrist and a small fine, but perhaps a better compromise between the old regime and the new would encourage more companies to do the right thing.

The Guidance on facilitation payments has been equally blunt:

“A facilitation payment is a type of bribe and should be seen as such. A common example is where a government official is given money or goods to perform (or speed up the performance of) an existing duty. Facilitation payments were illegal before the Bribery Act came into force and they are illegal under the Bribery Act, regardless of their size or frequency”.

The SFO is very clear: it doesn’t matter the size or frequency of the bribe, it is what it is and the SFO will seek to prosecute those that engage in it.

So, 2013 could be the year that the SFO brings its first high profile prosecutions.  We have been waiting a long time and there has been some cynicism building about whether the Act would prove meaningful.  Two important questions arise for business owners: firstly, if the SFO shows its teeth, will you have the right policies and procedures in place to defend your business if it comes knocking at your door?  And if you don’t, what could happen to your business if an offence is reported to the SFO by someone other than you?

For more information contact Scott Simmons on 01423 789 888

The information contained in this article is intended for guidance only and is not intended to provide specific legal advice to you or your business. Expert advice on any issue should always be obtained. Newtons Solicitors Limited does not accept liability for any loss that may arise from relying on or using the information contained in this article.