From our deck chairs we thought we’d share this with you. An open letter from David Green, Director of the SFO, in connection with facilitation payments. Surprisingly, we are not aware of it having received much (if any) publicity and from our deckchairs in the sun, we thought we’d change that fact…
“Enforcement of the United Kingdom’s Bribery Act – Facilitation Payments
To Whom It May Concern
The United Kingdom’s Bribery Act 2010 provides in clear terms that it is a crime for any individual or company with a UK presence to bribe a public official. This includes “facilitation payments” – money or goods given to a public official to perform, or speed up the performance of, an existing duty.
Facilitation payments are illegal under the Bribery Act 2010 regardless of their size or frequency.
This absolute prohibition is consistent with the United Nations Convention against Corruption, which similarly does not allow any exception for the use of facilitation payments. It is also consistent with the policy of Organisation for Economic Co-operation and Development (OECD), which in 2009 agreed to prohibit or discourage the making of such payments.
The Serious Fraud Office is the lead agency for the enforcement of the Bribery Act 2010. Individuals and companies that use facilitation payments in the course of their business are at risk of criminal prosecution in the UK.
The Serious Fraud Office is working with colleagues in the Foreign and Commonwealth Office (FCO) and other UK Government departments to disseminate this message. 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.
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.
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.
[David Green] Signature
David Green CB QC
Director of the Serious Fraud Office
6th December 2012?
David Green revised the SFO position on facilitation payments relatively early on in his tenure with the retraction of the earlier guidance put out by his pre-decessor Director, Richard Alderman. The new guidance was, broadly speaking, a restatement of the Joint Prosecution Guidance when it comes to the Bribery Act jointly penned by the CPS and the SFO.
More recently David Green has spoken about the focus on facilitation payments. In particular at a US dinner which we reported here Mr. Green emphasised his point again – leading at least one person who attended to privately express their disappointment that the Bribery Act and SFO focus might target what they perceived as the lesser evil of facilitation payments in contrast to big ticket bribery to win contracts. No doubt a sentiment shared by others.
In some ways Mr. Green’s open letter adds nothing new. For example, we have written before about what happens if business report demands for bribes to their local embassy, for example here.
The various pronouncements of Mr. Green make it clear that the SFO position on facilitation payments has hardened significantly. Given the focus of the SFO on serious fraud then a few one off payments are unlikely to interest it.
But there is a big BUT. Businesses should beware. The SFO will aggregate facilitation payments made and so if, for example, a business is frequently put under pressure to pay them and does so it is at real risk of investigation and prosecution by the SFO.
We would not be at all surprised if the SFO bring prosecutions in connection with paying facilitation payments.
This may be depressing news for some. But, on the bright side – we have helped clients succesfully resist payment of facilitation payments in challenging (and others might have considered hopeless) situations!