In October 2012 we blogged on revised statements of policy issued by the SFO regarding a number of areas including facilitation payments.

In its statement on facilitation payments, the SFO affirmed that such payments remained illegal, following the UK Bribery Act 2010, and indicated that prosecution in such cases would depend upon

(i)                whether it was a serious or complex case falling within the SFO’s remit, and if so 

(ii)             whether the SFO concluded, applying the Full Code Test in the Code for Crown Prosecutors, that there was an offender who should be prosecuted.

[The Full Code Test requires a prosecutor to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and that a prosecution is required in the public interest]

In December 2012 the Director of the SFO, David Green QC, published an Open Letter, elaborating on the SFO’s approach to enforcement in this area.

The letter contains the following significant passages:

(a)   ‘Facilitation payments are illegal under the Bribery Act 2010 regardless of their size or frequency’

(b)  ‘If a UK individual or company is asked to make a facilitation payment in the course of doing business overseas, they are actively encouraged to inform the FCO via the local embassy, high commission or consulate. A report will then be sent to the Serious Fraud Office’

(c)  ‘The Serious Fraud Office will decide on the best course of action. This may involve communicating the information to a law enforcement agency in the country where the request was made, so that appropriate measures can be taken against the relevant public official’ 

(d) ‘The UK Government and the Serious Fraud Office are committed to stamping out bribery and upholding the rule of law. The Serious Fraud Office stands ready to take effective action against the use of facilitation payments, regardless of where they are requested’ 

This would appear to be a clear message, both to commercial organisations and to the OECD, that the SFO regards facilitation payments as being an important item on its current agenda. The full text of the Open Letter can be found here.