K&L Gates has helpfully summarised what SFO guidelines David Green CB QC, the director of the SFO, has revised concerning facilitation payments, business expenditure (hospitality) and corporate self-reporting. The new policies were published on 9 October 2012.
The new policies can be summarised as follows:
Facilitation Payments Policy - They are illegal; decisions to prosecute will be based on the Prosecutor's Code (the "Code") and the Joint Guidance (the "Guidance") and the making of these payments may lead to prosecution under the Bribery Act 2010 and/or the Proceeds of Crime Act 2002.
Gifts and Hospitality Policy - They may be legitimate expenditures but they may also be bribes; decisions to prosecute will be based on the Code and the Guidance and the making of these payments may lead to prosecution under the Bribery Act 2010 and/or the Proceeds of Crime Act 2002.
Self-Reporting - Decisions to prosecute will be based on the Code, the Guidance and the Joint Guidance on Corporate Prosecutions. Self-Reporting will be a "relevant consideration" but will not guarantee that a prosecution will not follow. Each case will turn on its facts. Even where the SFO does not prosecute following self-reporting it may still prosecute in respect of unreported violations of the law, or pass information on violations to other prosecuting bodies such as foreign police forces.
With the issuing of these policies, and the repeated references in them to the Code and the Guidance, it seems that Mr Green is attempting to recast the SFO as a hard-nosed prosecutor, and not the soft civil recovery body that some are concerned it has become. There may also be a perceived need within the SFO to reaffirm its purpose as an agency designed to investigate and prosecute serious white collar criminal offences following a dearth of prosecutions in recent years under Mr Green's predecessors.
Click here for more information: http://www.klgates.com/sfo_revised_policies-23-10-12/
Click here for the revised polices: http://www.sfo.gov.uk/press-room/latest-press-releases/press-releases-2012/revised-policies.aspx