The Director of Public Prosecutions or the Director of the Serious Fraud Office must give personal consent to a prosecution under the Bribery Act.
The Directors will make their decisions in accordance with the Code for Crown Prosecutors (the Code), applying the two-stage test of whether there is sufficient evidence to provide a realistic prospect of conviction and, if so, whether a prosecution is in the public interest.
The Code sets out a number of general public interest factors tending in favor of prosecution. In the context of bribery offenses, the following may be particularly relevant:
- a conviction for bribery is likely to attract a significant sentence;
- offenses will often be premeditated and may include an element of corruption of the person bribed;
- offenses may be committed in order to facilitate more serious offenses;
- those involved in bribery may be in positions of authority or trust and take advantage of that position;
- large or repeated payments are more likely to attract a significant sentence;
- facilitation payments that are planned for or accepted as part of a standard way of conducting business may indicate the offense was premeditated; and
- where a commercial organization has a clear and appropriate policy setting out procedures an individual should follow if facilitation payments are requested and these have not been correctly followed.
Factors set out in the Code tending against prosecution for bribery offenses include:
- the court is likely to impose only a nominal penalty;
- the harm can be described as minor and was the result of a single incident;
- there has been a genuinely proactive approach to self-reporting and remedial action;
- the payment(s) came to light as a result of proactive self-reporting and remedial action;
- the organization has a clear and appropriate policy setting out procedures to follow if facilitation payments are requested, and these procedures have been correctly followed; and
- the payor was in a vulnerable position arising from the circumstances in which the payment was demanded.