On 6 August 2019 the UK Serious Fraud Office (“SFO“) published its Corporate Co-operation Guidance which forms part of the SFO’s internal Operational Handbook. The Guidance is designed to assist SFO staff with assessing the co-operation of organisations when considering charging decisions and the possibility of Deferred Prosecution Agreements (“DPAs“).
Co-operation was already highlighted as a public interest factor tending against prosecution in the DPA Code of Practice but the Co-operation Guidance provides more specificity on the behaviours and information required for an organisation to be deemed to be co-operating. Thematically, these requirements are nothing new: identifying suspected wrongdoing and those responsible for it (regardless of their seniority), promptly reporting to the SFO within a “reasonable time” of those suspicions coming to light and preserving and providing evidence promptly in an evidentially sound format. However the specific examples of good practice the Guidance provides are more prescriptive on the extent to which an organisation will need to assist the SFO with its investigation and the ways in which it should seek to do this.
A number of the examples of good practice relate to the manner and timeframe in which material is provided to the SFO, suggesting a focus on encouraging organisations and their advisers not just to satisfy information requests, but to provide the information in the most useful and digestible format possible. The Guidance also indicates that co-operation extends beyond providing material within the organisation’s possession and will include identifying relevant material in the possession of third parties and alerting the SFO to relevant digital and financial information which the organisation cannot access. It also notes that the SFO may ask organisations to facilitate the production of third party material and to assist with identifying material that could be disclosable in criminal proceedings, either to the prosecution or the defence.
When it comes to interviewing potential witnesses and suspects and taking personnel/ HR actions, the Guidance infers that taking such actions without speaking to the SFO first, and “in a timely way”, could prejudice the investigation and warns against tainting a potential witness’ recollection by sharing another person’s account or showing them documents they have not previously seen. The Guidance also expands on the principle in the DPA Code that co-operation includes disclosing witness accounts and documents shown to witnesses by advising that recordings, notes and/or transcripts of interviews should also be provided.
The Guidance gives some insight into the SFO’s practical approach to challenging claims to privilege under its new director, Lisa Osofsky, by stating that if an organisation claims that certain material is privileged, this claim must be certified by independent counsel and that where privilege is not waived, the SFO will, where appropriate and the SFO doubts the claim to privilege, apply to summons a witness to produce the document(s) or have the court adjudicate on the claim to privilege. The Guidance confirms, however that whilst an organisation will not obtain the corresponding factor against prosecution in the DPA code if it does not waive privilege, it also will not be penalised by the SFO.
The Co-operation Guidance makes clear that there is no generally applicable checklist that can cover co-operation for all types of cases and most organisations will reluctantly accept that this must be the case given the breadth of the SFO’s remit. It therefore remains the case that despite some further clarity in this Guidance on the types of behaviours that should be considered co-operative and some helpful commentary in several recent Deferred Prosecution Agreements (Tesco and Rolls Royce), there is no definitive blueprint for how an organisation should co-operate with the SFO in the UK. What is very important to note is the Co-operation Guidance’s warning that even full and robust co-operation does not guarantee any particular outcome. Organisations will have to weigh the risk and rewards of taking co-operative steps such as waiving privilege over documents and volunteering things such as witness accounts (whether or not covered by privilege) without assurance that such actions will definitely improve the ultimate outcome.