The Serious Fraud Office (SFO) has now published its much-heralded revised corporate co-operation guidance, the aim of which is to assist corporate entities in explaining what is considered to be co-operation. Organisations that discover potential difficulties and are considering engaging with the authorities will need to review this guidance carefully and take advice as appropriate.
The guidance notes that co-operation will be a relevant consideration in SFO charging decisions in line with the Guidance on Corporate Prosecutions and Deferred Prosecution Agreements Code, which we have analysed in previous articles.
Of note, the guidance states that:
Co-operation means providing assistance that goes above and beyond what the law requires."
The guidance makes it plain that it is not providing advice and that it is a non-prescriptive document, but it does highlight the following features that would be likely to be viewed as co-operation:
- Identifying suspected wrongdoing and criminal conduct together with the people responsible, regardless of their seniority or position in the organisation.
- Reporting this to the SFO within a reasonable time of the suspicions coming to light.
- Preserving available evidence and providing it promptly in an evidentially sound format.
In a similar vein, the guidance also identifies features that it considers would be inconsistent with genuine co-operation:
- Protecting specific individuals or unjustifiably blaming others.
- Putting subjects on notice and creating a danger of tampering with evidence or testimony.
- Being silent about selected issues.
- Tactical delay or information overloads.
Whilst identifying these key areas, the guidance notes that even full, robust co-operation does not guarantee any particular outcome, stating that the very nature of co-operation means that there is no checklist and that, accordingly, each case will turn on its own facts.
The guidance is then broken down into two core elements:
- Preserving and providing material; and
- Witness Accounts and Waiving Privilege
On the first aspect, it looks separately at good general practices, digital evidence, hard copy or physical evidence, financial records, industry and background information and, finally, individuals.
This final point is relevant to the second section on witness accounts and privilege, which has been an area of controversy for some time. Whilst the guidance does not state that a failure to waive privilege will be viewed as non-co-operation, it does make it clear that any claim to privilege will need to be properly established, if necessary through the provision of certification from independent counsel.
Osborne Clarke comment
The guidance does not appear to say anything that has not been said previously by the SFO. Given that it is intended to help companies, it was perhaps surprising that it was released in August when it might be have been expected to attract least pick up.
Lisa Osofsky, the SFO Director said, on the guidance being released, that in her view businesses should be "willing, indeed eager” to share their “great experience, advanced analytical tools and vast quantities of data”.
Given, however, that the guidance provides nothing new, not least in providing further assistance as to how far an organisation can proceed with an internal investigation before self-reporting, it will be interesting to see whether the guidance will in fact lead to companies being more willing to self-report and engage with the SFO.