UK Bribery Act: Serious Fraud Office Publishes Revised Rules

by Pillsbury Winthrop Shaw Pittman LLP

[authors: Raymond L. Sweigart]

As noted in our Alert on Oct. 1, 2012 and presaged by the withdrawal of previous guidance, new rules published Oct. 9 by the UK Serious Fraud Office (SFO) have opted for stricter language. The SFO now says that it will prosecute under the Bribery Act based primarily on the statute itself rather than on previous, more lenient and somewhat subjective guidance principles issued after the new law was introduced in July 2011. The newly announced policy had been predicted by many observers based on promises to tighten up enforcement made by the current director, David Green QC, on his appointment this past May. The new rules cover the SFO’s approach to corporate hospitality, facilitation payments and self-reporting. 

In its revised guidance, rather than attempting to delineate or offer examples of what might be acceptable corporate hospitality and what might not be, the SFO says it will prosecute corporate hospitality and facilitation payments “if there is a realistic prospect of conviction.” This statement marks a major departure from the previous guidance, adopted after lengthy consultations, which had stated that the SFO would take into account various factors before deciding whether to prosecute, such as the existence of a company policy covering such matters and the scale of payments. The SFO had also previously acknowledged that small payments to ensure that public officials carry out normal functions, called facilitation payments, were unfortunately endemic in many countries and would take time to eradicate. The new guidance simply states: “A facilitation payment is a type of bribe and should be seen as such.”

The new test for whether or not a company will face prosecution for corporate hospitality will now simply be based on whether or not there is “a realistic prospect of conviction” and “it is in the public interest to do so.” Previously the SFO had attempted to provide companies with assurance that ordinary and customary hospitality would not be prosecuted and that it would take into account a number of factors such as whether a company had rules about entertaining, whether the expenditure was proportionate and how the expenditure was recorded by the company in its books and records. Despite this apparent change in the stated ground rules, the SFO has once again attempted to reassure companies that while it has dropped guidance to that effect under its new policy, “bona fide hospitality or promotional or other legitimate business expenditure is recognised as an established and important part of doing business.” While there may never have been a bright line test in this area, it now appears to leave much more to be determined in the eye of the SFO beholder.

The final area affected is the approach the SFO will take to companies that self-report corruption. Under the previous director, Richard Alderman, the SFO had reassured companies they would normally face only civil law sanctions if they uncovered and reported their own wrongdoing. The new rules are far less comforting, with this plain statement: “If on the evidence there is a realistic prospect of conviction, the SFO will prosecute if it is in the public interest to do so.... Self-reporting is no guarantee that a prosecution will not follow. Each case will turn on its own facts.”

As we also previously noted, the move toward the adoption of a deferred prosecution model in the UK may yet ameliorate what might otherwise be considered a rather more harsh approach to those companies that are trying to do right. Nevertheless, the new guidance and an “all of nothing” prosecution policy highlights again the sweeping breadth of the Bribery Act as written, the weakness of any guidance that attempts to interpret or limit that breadth, and the importance that all covered companies exercise caution and due diligence in their affairs. Whether to self-report if that due diligence should turn up evidence of problematic behavior will now surely require more careful consideration and counsel.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pillsbury Winthrop Shaw Pittman LLP | Attorney Advertising

Written by:

Pillsbury Winthrop Shaw Pittman LLP

Pillsbury Winthrop Shaw Pittman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.