When will a new prosecution be brought?

The Code requires prosecuting authorities to apply the “Full Code Test” when deciding whether to lay charges. This test is comprised of two stages:

1. The Evidential Stage

First, the prosecutor must consider whether there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.  This requires an objective assessment of the evidence, including the impact of any defence or other information the suspect has put forward.  For the evidential stage to be met, it must be considered more likely than not that an objective, impartial and reasonable jury or a bench of magistrates or judge would convict the suspect of the charge alleged.

Generally speaking, the prosecutor may take into account whether the evidence is:

• admissible in court;
• reliable (i.e. is it accurate and given by someone with integrity?); and
• credible (i.e. is there a reason to doubt it?).

2. The Public Interest Stage

If the Evidential Stage is passed, the prosecutor will then consider whether a prosecution is required in the public interest.  The Code sets out a number of questions for the prosecutor to consider in this regard, but this is also supplemented by other specific guidance relating to particular types of defendant or offence (see below).  The questions to be considered are:

• How serious is the offence committed?
• What is the level of culpability of the suspect?
• What are the circumstances of and the harm caused to the victim?
• Was the suspect under 18 at the time of the offence?
• What is the impact on the community?
• Is prosecution a proportionate response?
• Do sources of information require protecting?

In addition:

• the Director of the SFO and the Director of Public Prosecutions have published guidance on corporate prosecutions (the Corporate Prosecution Guidance)
• the SFO and CPS have published a Code of Practice for Deferred Prosecution Agreements (the DPA Code) (more information on deferred prosecution agreements generally can be found here)
• the Director of the SFO and Director of Public Prosecutions have published joint prosecution guidance on the Bribery Act offences (the Joint Prosecution Guidance)

which may be taken into account when deciding whether to prosecute a corporate under the Bribery Act (or just the latter guidance, in the event of a prosecution of an individual).  In particular, they provide specific indicators as to the factors a prosecutor will take into account when considering whether it is in the public interest to prosecute an offence.

There are factors tending in favour of and against prosecution for the offences in the Bribery Act published by the Joint Prosecution Guidance, Corporate Prosecution Guidance and the DPA Code:

Factors in favour of prosecution

• The conviction is likely to attract a significant sentence
• The offence was premeditated and may include an element of corruption of the person bribed
• The offence may have been committed to facilitate more serious offending
• Those involved in the bribery were in positions of authority or trust and took advantage of that position.

There are additional public interest factors in favour of prosecution:

• A history of similar conduct
• The conduct alleged is part of the established business practices of the company
• The offence was committed at a time when the company had an ineffective corporate compliance programme
• The company has been previously subject to warning, sanctions or criminal charges, but had nonetheless failed to take adequate action to prevent future unlawful conduct
• Failure to report wrongdoing within a reasonable time of the offending coming to light
• Failure to report properly and fully the true extent of the wrongdoing
• Reporting the wrongdoing but knowing or believing the report to be inaccurate, misleading or incomplete
• Significant harm caused directly or indirectly to the victims of the wrongdoing or a substantial adverse impact on the integrity or confidence of markets, local or national governments.

Factors tending against prosecution

• The court is likely to impose only a nominal penalty
• The harm can be described as minor and was a result of a single incident
• There has been a genuinely proactive approach involving self-reporting and remedial action.

There are additional public interest factors against prosecution:

• A lack of a history of similar conduct
• The existence of a genuinely proactive and effective corporate compliance programme
• The availability of civil or regulatory remedies that are likely to be effective and more proportionate
• The offending represents isolated actions by individuals (e.g. a rogue director)
• A conviction is likely to have adverse consequences for the company under European law (i.e. the company may be automatically debarred from public tenders) or disproportionate consequences under domestic law or the law of another jurisdiction
• The company is in the process of being wound up
• Co-operation (namely early and genuine self-reporting of the wrongdoing and taking proactive remedial actions, such as compensating victims, as well as identifying relevant witnesses, disclosing accounts and documents and assisting the prosecutor in their investigations)
• The offending is not recent and the corporate, in its current form, is effectively a different entity from that which committed the offences
• A conviction is likely to have collateral effects on the public, the corporate’s employees, shareholders or the corporate’s and/or institutional pension holders.