On 6 August 2019, the UK's Serious Fraud Office (SFO) issued much-awaited guidance on corporate co-operation, which forms part of its Operational Handbook (the Guidance). The Guidance outlines the steps it expects companies to take in order to qualify for cooperation credit. Notably, the SFO regards co-operation as meaning providing assistance that goes "above and beyond" the requirements at law.
Meaning of Co-operation
Co-operation will be taken into account by the SFO when making charging decisions to the extent set out in the Guidance on corporate prosecutions and the Deferred Prosecution Agreements Code of Practice (the DPA Code). Examples of this are provided in the Guidance and include:
- Identifying suspect wrong-doing and criminal conduct, together with the people responsible (regardless of their seniority or position);
- Reporting this to the SFO within a reasonable time period upon learning of the suspected wrong-doing;
- Preserving the availability of evidence and providing such evidence promptly and in an "evidentially sound format";
Conversely, the Guidance also contains examples of what genuine co-operation is inconsistent with. Such behaviour would include protecting specific individuals and blaming others unjustifiably, putting people on notice and creating a risk to the preservation of available evidence, remaining silent on certain issues and using tactical delays and information overloads.
In addition to the examples of co-operation, the SFO also provides, at some length, a non-exhaustive list of indicators of good practice. These include general good practice points as well as advice on how to handle digital evidence, hard-copy evidence and financial records and analysis. In particular, it requires companies to: consult with the SFO before interviewing witnesses or taking personnel/HR action, and refraining from tainting a witness's recollection by showing them documents they have not already seen.
When providing witness accounts as part of seeking credit for co-operation, companies should also provide any recording / transcripts, and identify a witness to speak to the content of those interviews.
If the company elects not to waive privilege over documents, including witness accounts, then this claim to privilege must be properly established through certification by independent counsel, and of course would have knock on effects on the claim to cooperation.
While this Guidance is welcomed, the caveat remains that "full, robust co-operation" does not guarantee a particular outcome and each case will depend on the facts in question.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.