By Zoe Jacob

Facilitation payments, or grease payments, have been discussed on this website before. These payments are made to public officials to secure expeditious performance of a public duty that the payee is already entitled to have performed. Section 6 of the Bribery Act, 2010 specifically prohibits such payments to Foreign Public Officials.

The CPS and SFO Joint Guidance on Prosecutions under the Bribery Act addresses the public interest factors tending for and against prosecution in facilitation payments cases. Amongst the factors tending against prosecution is the following: “the payer was in a vulnerable position arising from the circumstances in which the payment was demanded”. Whether the payee was put under pressure to make the facilitation payment is a relevant factor in the charging decision.

This coheres with the more general guidance in the CPS ‘Code for Crown Prosecutors’ which provides that the fact that ‘the suspect has played a minor role in the commission of the offence’ is a factor tending against it being in the public interest to prosecute him.

This being the case it can be concluded that where a corrupt public official puts undue pressure on an individual or corporation to make a facilitation payment, the decision on whether to prosecute will be carefully reviewed by the CPS or SFO and a decision not to prosecute may be taken.

This Guidance must however, be considered in the context of the robust attitude towards stamping out facilitation payments expressed by Richard Alderman, Director of the SFO, in June 2011: “These payments have a corrosive effect … corruption becomes systematic and endemic in the society [in which facilitation payments are paid]”. In light of this, the question of whether pressure placed on an individual or corporation to make a facilitation payment can be relevantly used in defence of a criminal charge under Section 6 of the Bribery Act is relevant.

Duress is a very hard defence to run; the defendant must raise the issue of a threat of death or serious violence to himself or another. It is then for the Crown to disprove the assertion that a person of reasonable firmness, sharing the defendant’s characteristics would not be reasonably expected to resist this threat. If the defendant willingly joined a group engaged in criminal activity and subsequently found himself the ‘victim’ of such threats then the defence cannot be run.

There are two major problems with running the defence of duress in the context of facilitation payments. Firstly, the type of threat which is likely to accompany a demand that a facilitation payment be paid is not likely to be one of death or serious violence in the vast majority of occasions when demands are made. It is far more likely that the threat against the individual or corporation will relate to commercial or bureaucratic matters. The existence of a threat of this nature cannot be used as the foundation of a threat of duress.

Secondly, even in the unlikely event that a threat of death or serious violence were made, the issue of whether the payee chose to engage with a group known to engage in criminal activity is likely to be a difficult issue to litigate at trial. If the defendant’s actions were part of a larger incidence of bribery and corruption, the defence of duress would be very difficult to run.

It can thus be concluded that whilst pressure put on an individual or corporation making a facilitation payment may be a relevant factor in the charging decision, it is unlikely to provide a defence once a charge has been made, save for in exceptional cases – and in those cases, strong representations from the defence in advance of a charging decision may well be the best defence strategy.

Zoe Jacob Pupil, 6 King’s Bench Walk