Stage Must Come Before Public Interest in Bribery Cases

Landmark Ruling Reminds Prosecutors of Importance of Evidential Threshold

In a significant development, prosecutors have been reminded that stage must come before public interest in bribery cases. The Attorney General’s Guidance on the Prosecution of Bribery Offences has emphasized that a case must first pass the evidential stage before consideration is given to whether a prosecution is required in the public interest.

Evidential Threshold Must be Met

The guidance states that each case will be rigorously considered on its own facts and merits, with prosecutors taking into account general and specific public interest factors. However, it is clear that a case that does not meet the evidential threshold should not proceed, no matter how serious or sensitive the public interest factors may be.

Factors Considered in Bribery Cases

In bribery cases, prosecutors will consider the following factors:

• General Factors:
  • Seriousness of the offence
  • Level of culpability of the suspect
  • Harm caused to the victim
• Specific Factors related to Bribery:
  • Presence of corrupt officials
  • Large or repeated payments
  • Premeditated planning

Facilitation Payments are Illegal and Will be Considered in Prosecution

The guidance highlights that facilitation payments, which are unofficial payments made to public officials to secure or expedite routine actions, are a form of bribery and remain illegal under the Ordinance. In cases involving facilitation payments, prosecutors will consider factors such as:

• Size of the payment
• Level of planning involved
• Whether the payer followed their organization’s clear and appropriate policy against facilitation payments

Public Interest Factors Against Prosecution

The document emphasizes that a prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour. Factors tending against prosecution may include:

• Single small payments or isolated incidents
• Proactive approaches involving self-reporting and remedial action
• Clear national security interests that accounted for the facilitation payment

Access to Guidance Document

The Attorney General’s Guidance on the Prosecution of Bribery Offences is available online at www.fig.gov.fk/legal/.