SFO gives corporate co-operation guidance

The SFO has published guidance for corporates setting out the factors it considers when deciding whether to charge corporates with criminal offences or invite them to negotiate a deferred prosecution. The key message is that, while every case is different, prompt self-reporting is key, and that if a corporate makes a prompt self-report and then cooperates fully the SFO will invite it to negotiate a DPA except in exceptional circumstances.

On the whole, failure to notify within a reasonable timeframe is a specific public interest factor in favour of prosecution. But firms that don’t self report will not necessarily have missed the opportunity for a DPA, but will have provide “exemplary cooperation” with the SFO investigation.  The SFO won’t penalise companies for maintaining valid claims of legal professional privilege, but it will consider waiving privilege to be a significant cooperative act. The guidance gives further examples of what it will consider to be cooperative or non-cooperative conduct.

The guidance reiterates that the SFO does not expect firms to have fully investigated before making a report, and should report using the known facts and evidence they have at the time. It reminds firms that making a SAR or a report to another agency is not a self-report for these purposes.

The SFO will decide within 6 months of a self-report whether it will open an investigation, and then conclude DPA negotiations within 6 months of inviting a corporate to negotiations.