On 21 July 2009 the SFO, one of the bodies whose consent is required before proceedings can be instituted under the Bribery Act and who will be responsible for enforcing the Bribery Act in respect of overseas corruption published a press release setting out its approach to dealing with overseas corruption (Guidance). The Guidance sets out the SFO’s policies, which are designed to encourage businesses to self-report overseas corruption. In return, businesses would benefit from civil sanctions (for example, restitutionary relief) (and the ability to work with the SFO to manage any negative publicity), rather than having criminal sanctions imposed (and therefore avoiding debarment from contracts under the Public Contracts Regulations 2006.

The Guidance has not yet been updated to cover the final Bribery Act, but when dealing with the previously proposed corporate offence of negligently failing to prevent bribery, the Guidance states that the SFO will consider the adequacy of any procedures in mitigating the risk of corruption. It would also look at the corporate culture to see if the processes and policies reflect reality in the organisation. The Guidance sets out the factors that would be considered, such as whether the organisation has a code of ethics or a whistleblowing helpline. It is anticipated that similar considerations will apply to the new offence of failing to prevent bribery.

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