Adequate Procedures, Bribery Act & Proceeds of Crime, Corporate hospitality - Written by Barry & Richard on Sunday, September 2, 2012 10:22 - 2 Comments
SFO Director David Green CB QC: on corporate hospitality
‘We are not interested in that sort of case. We are interested in hearing that a large company has mysteriously come second in bidding for a big contract. The sort of bribery we would be investigating would not be tickets to Wimbledon or bottles of champagne. We are not the “serious champagne office”.’
today’s Daily Mail quotes the Director of the Serious Fraud Office as saying. It is helpful stuff.
We have said time and time again that the SFO is unlikely to be bringing a stand alone Bribery Act prosecution over corporate hospitality. Scare stories published about Olympic corporate hospitality levels and pictures of empty seats led to reports that the Bribery Act was to blame.
Many of the empty seats were not in fact empty corporate boxes but instead seats belonging to Olympic officials who did not bother to turn up to early qualifiers. But why let the facts get in the way of a good story.
That said, we are aware of instances where corporates had Olympic corporate hospitality rejected because of the Bribery Act.
Hopefully the latest comments from the new SFO Director will kill off some of the scaremongering that has gone before among the media and some legal advisers.
In an excellent post our friend Howard Sklar recently exposed some legal advice given by one lawyer about the Bribery Act who advised:
“The limit should be zero dollars. That will keep you safe”
Howard, known for his tempered approach commented:
Let’s just talk about how advice likes this harms not just the giver, but the receiver too. First, the giver. The person who gives this advice will give it to one of two types of people: people who know what they’re talking about, or people who don’t. I don’t know which comes out on the bottom. If the lawyer is giving this advice to a knowledgeable person, that person will likely politely smile, nod, and then put the lawyer in the “idiot” box in his head, and not listen to another thing that lawyer says. Which is a problem, because maybe in the future—even a stopped clock is right, twice a day—that lawyer will give some advice the client should listen to. But getting out of the “idiot” box is a rare feat.
Or the recipient won’t know what they’re talking about. In which case, like a wide-eyed doe, they’ll just accept what the lawyer says as a best practice. Heaven forbid they go back to their own company and repeat that advice out loud. (We’re back to the “Idiot” box). Or even worse, that they’re in a position of authority, and could implement that advice.”
This is not rocket science. Companies should put in place proper procedures to deal with corporate hospitality in line with SFO guidance.
Broadly this means companies should think about their corporate hospitality process, and pick a number above which approval is required. If you want you can pick some more numbers above which a higher level of approval is required.
The key is to be able to justify why you picked approval thresholds and that the policy is actually followed. Both should be well documented.
As Howard says: “By the way, that “zero dollars” idea doesn’t keep you safe. The business will ignore it, sidestep it, and will do that for just about any advice you give from now on.”