Business expenses can be a difficult area to take into account when considering the Bribery Act.
The problem with a bribery case based on over-generous hospitality is that there is nothing to assist with the determination of the correct level of hospitality, what is merely generous and what is so over-generous that it is caught by the Act. Business expenses are likely to be a difficult issue for some time as the courts develop a system of addressing the issue. In the meantime solicitors with a proven track record of dealing with complex financial investigations will be your optimum choice to give you the best chance of showing your business is run honestly.
There will be obvious examples of the over-generous but deciding where the bottom end should be is a real problem as some small items of expenditure could be over-generous. There will be a de minimis attitude by prosecutors as the cases will always be fought and the chance of conviction may be slight.
Bona fide hospitality or promotional or other legitimate business expenditure is recognised as an established and important part of doing business. It is also the case, however, that bribes can sometimes be disguised as legitimate business expenditure.
Whether or not the SFO will prosecute in respect of a bribe presented as hospitality or some other business expenditure will be governed by the Full Code Test in the Code for Crown Prosecutors and the Joint Prosecution Guidance of the Director of the SFO and the Director of Public Prosecutions on the Bribery Act 2010. Where relevant, the Joint Guidance on Corporate Prosecutions will also be applied.
If on the evidence there is a realistic prospect of conviction, the SFO will prosecute if it is in the public interest to do so. In appropriate cases the SFO may use its powers under proceeds of crime legislation as an alternative (or in addition) to prosecution; see the Attorney General’s guidance to prosecuting bodies on their asset recovery powers under the Proceeds of Crime Act 2002.