Notices & News

Guidance on the Bribery Act – Hospitality and Facilitation Payments

27th February 2014

On October 9, 2012, the United Kingdom’s Serious Fraud Office (“SFO”) issued revisions to its official Guidance for the Bribery Act of 2010 (“Revisions”). The Revisions are intended as guidance only and do not have the force of law.

Sadly for some, the UK Bribery Act has been described as “the toughest anti-corruption legislation in the world” against stiff competition in the form of the United States Foreign Corrupt Practices Act (“FCPA”). The UK Bribery Act also purports to have a very broad remit. It governs companies doing business in the UK, whether or not they are UK companies and also reaches internationally for companies who are UK based. The conduct amounting to bribery does not have to involve the UK itself. So in other words if your sales director or agent in Liberia is giving some “commercial encouragement” to a political figure to push through the sale of an aircraft then yes indeed your UK entity is at risk, whether you are aware of it or not.

The new Revisions confirm the approach of the SFO that (unlike the FCPA), the UK Bribery Act does not provide for an express exception or defence for facilitation payments or for reasonable and bona fide gifts and hospitality for government officials.

The Revisions confirm the SFO’s approach in three areas:

  • Hospitality. Thankfully hospitality expenditures are acceptable which is good news just in time for the holiday season, provided that they do not reach the level of bribes. It would not be a bribe for example to take your lawyer to lunch and you should feel free to do so anytime.
  • Facilitation payments. As stated above, there is no exception to the UK Bribery Act for facilitation payments. The guidance does suggest that prosecution for such will only follow if the evidence and the public interest weigh in favour of a prosecution.
  • Self-reporting (voluntary disclosure). Previously it was widely accepted that self-reporting would lead to some form of settlement with SDO. The guidance confirms now only that it will be taken into account but will not necessarily lead to settlement.

The SFO has published some FAQs which are attached below for your reference.

http://www.sfo.gov.uk/bribery–corruption/the-bribery-act/questions-and-answers.aspx

Aoife O’Sullivan

Partner

GATES AND PARTNERS LLP

5th Floor, Capital House

85 King William Street

London EC4N 7BL

T: +44 207 337 0366

M: 07709 432 350

E: aosullivan@gatesandpartners.com