This post was written by Rosanne M. Kay.
I recently spoke at the 6th International Pharmaceutical Compliance Congress in Budapest. Jane de Lozey, Head of Fraud at the Serious Fraud Office (SFO), and Raymond Emson, Head of Policy at the SFO, were also scheduled to speak but unfortunately could not make it at the last minute. We did, however, have the benefit of their slides, which included a number of interesting points about the UK Bribery Act and facilitation payments.
In particular, the slides indicated that the SFO will consider a number of factors when exercising its discretion in relation to facilitation payments. These factors include:
- Whether the company has a clear issued policy regarding such payments
- Whether written guidance is available to relevant employees as to the procedure they should follow when asked to make such payments
- Whether such procedures are being followed by employees
- Whether there is evidence that all such payments are being recorded by the company
- Whether there is evidence that proper action (collective or otherwise) is being taken to inform the appropriate authorities in the countries concerned that such payments are being demanded
- Whether the company is taking what practical steps it can to curtail the making of such payments
The same slide referred to an overarching principle as to whether the company can demonstrate that it is actively working towards “zero tolerance”.
Although there was, unfortunately, no accompanying explanation, these statements suggest that the SFO will not adopt as rigorous an approach towards facilitation payments as might have been supposed, and they appear to recognise that there are circumstances in which an employee has no choice but to pay a facilitation payment. It is, however, unclear whether the circumstances envisaged by the SFO encompass a commercial emergency where, for example, a company will incur a significant penalty if it is unable to deliver goods on time, which it is unable to do without making a facilitation payment. The SFO has, however, previously said that, if the answers to the above questions are satisfactory, then the company should be shielded from prosecution.