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New SFO Guidance on Bribery Act 2010 – by Siobhain Egan

The SFO’s new Director now appears to be taking a slightly different approach to that of his predecessor when focusing upon the controversial issues of self-reporting, hospitality, and facilitation payments.

Self-reporting still remains of crucial importance (and therefore the need for companies to have comprehensive up-to-date compliance systems in place), however the SFO appear to be moving slightly away from the Deferred Prosecution Agreement/civil settlement so favoured by Richard Alderman and the present government. The latter has just finished consulting upon DPAs.

The SFO have stated that, “The revised policies make it clear that there will be no presumption in favour of civil settlements in any circumstances.” One wonders how much of this is ‘grandstanding’.

We know that the SFO are working under a much-reduced budget, in fact only £2 million has been allocated to bribery and corruption, so there does not appear to be much in the pot to fund large, long-running, in-depth investigations and prosecutions. That is, unless they pursue companies using the Proceeds of Crime Act 2002, which has a reverse burden of proof or civil asset recovery. Essentially companies and individuals would have to prove that the payments in question were legitimate.

Facilitation payments have always been a ‘bone of contention’ between the US and UK prosecuting authorities. The SFO now say that they will prosecute if there are, for example, large/repeated payments but they are no more definitive than that.

Very little is said about hospitality, other than that they recognise that hospitality is part of business culture but that bribes can be dressed up as hospitality.

So what does this mean for companies? As stated earlier, ensure that you have ‘gold plated’ compliance systems in place and, if you are facing a SFO prosecution, it is likely to lead to a POCA investigation and you should ensure that you instruct specialist forensic accountants and solicitors when preparing your defence.

Contact Jeffrey Lewis or Siobhain Egan

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