The SFO has published guidance on how it intends to exercise its prosecutorial discretion in relation to the Bribery Act 2010, including setting out its policies in relation to facilitation payments, corporate hospitality and promotional expenditure.(Free access.)
On 30 March 2011, the SFO published the Bribery Act 2010: Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions (Bribery Act Prosecution Guidance), setting out its approach to prosecutorial decision-making under the Bribery Act.
The Bribery Act Prosecution Guidance is subject to the Code for Crown Prosecutors (Code), and in the case of potential corporate prosecutions, it should also be read in conjunction with the Guidance on Corporate Prosecutions.
The key part of the Code is the Full Code Test, which requires that prosecutors must first be satisfied that they have sufficient evidence that a prosecution has a reasonable chance of success and, if so, that it is in the public interest to bring a prosecution.
The approach of the Bribery Act Prosecution Guidance is, therefore, to analyse each of the relevant sections of the Bribery Act and explain how the SFO will be interpreting them when applying the Code. It gives examples of what evidential considerations might apply to the different offences, as well as examples of public interest factors (based on examples in the Code) that may be relevant in the context of each of the offences. As a general point, it states that there is an inherent public interest in prosecuting bribery.
The Bribery Act Prosecution Guidance will be useful for companies conducting a risk assessment to determine how vulnerable they are to infringing the Bribery Act, the likelihood of being prosecuted if they do, and what they can do to minimise those risks. Importantly, the guidance sets out how the SFO intends to deal with the more controversial issues that have arisen because of the Bribery Act; namely, how the SFO intends to enforce the Bribery Act in relation to facilitation payments and hospitality and promotional expenditure.
For more information on the SFO's prosecutorial discretion and the Bribery Act Prosecution Guidance, see Practice note, Bribery Act 2010: enforcement: prosecutorial discretion (www.practicallaw.com/6-504-2191).