Serious Fraud Office Gets Tough In UK Bribery Act Enforcement Guidelines

Self-reported Bribery Act violations will no longer be resolved "civilly whenever possible," while facilitation and hospitality payment violations become subject to the Full Code Test.

On October 9, the UK Serious Fraud Office (SFO) published revised policies for the Bribery Act of 2010 (Revised Policies), toughening its positions on self-reporting, facilitation payments, and hospitality expenditures.1 The revisions, which take "immediate effect" and "supersede[] any [previous] statement of policy or practice," appear to be a direct response to the Organisation for Economic Co-operation and Development's (OECD's) recent criticism of UK authorities for "increasingly relying on civil recovery orders which require less judicial oversight and are less transparent than criminal plea agreements."2 Companies should note that the Revised Policies affect decisions regarding self-reporting, as they can no longer rely on self-reported violations being resolved civilly, and subject facilitation and hospitality payment violations to the Full Code Test.

Self-Reporting

Revised Policies

The Revised Policies on self-reporting contrast sharply with guidelines from the SFO's July 2009 "Approach to Dealing with Overseas Corruption," which signaled preferential treatment for companies that reported their own wrongdoing.3 Whereas the former guidelines claimed that the SFO "want[ed] to settle self referral cases . . . civilly wherever possible," the Revised Policies state that self-reporting may be taken into consideration as a "public interest factor" against prosecution where the report "form[s] part of a 'genuinely proactive approach adopted by the corporate management team when the offending is brought to their notice.'"4

This mention of a "public interest factor" is a reference to the second part of the UK Crown Prosecution Service's two-pronged "Full Code Test," which is used in determining whether authorities should prosecute a corporation for Bribery Act violations. The SFO reaffirmed its endorsement of the Full Code Testoutlined in the Code for Crown Prosecutors5in its Revised Policies. The test first requires that authorities "be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge." If such evidence exists, authorities then must assess whether the prosecution is in the "public interest." As explained in the Code for Crown Prosecutors, "A prosecution will usually take place unless...