Corporate crime – SFO publishes guidance on co-operation and enforcement

The Serious Fraud Office (SFO) has published new guidance on its key considerations when determining whether to charge a corporate with criminal offending, or to invite it instead to negotiate a deferred prosecution agreement (DPA).

The new guidance replaces the 2019 Co-operation guidance and provides some helpful clarifications on the SFO's expectations for self-reporting and the benefits available to corporates who co-operate. It clarifies that:

• Benefits to self-reporting and co-operation – DPAs will likely be available to those who self-report, stating that "if a corporate self-reports promptly to the SFO and co-operates fully we will invite it to negotiate a DPA rather than prosecute unless exceptional circumstances apply". This is a departure from the 2019 guidance which stated that even "full, robust co-operation" (which included reporting to the SFO within a reasonable time) did not "guarantee any particular outcome". DPAs are not completely off the table, however, for corporates that do not self-report. The SFO says it will still consider inviting them to DPA negotiations if their co-operation is "exemplary".
• Timescales for reports – reports must be made within "a reasonable time" (which the SFO acknowledges may depend on the circumstances), and not doing so is a public interest factor tending towards prosecution. The guidance acknowledges that some investigation may be required before a corporate can report but once it becomes aware of direct evidence of corporate offending, it must report that information promptly.

• Timing of investigations – the SFO will seek to contact corporates within 48 hours of a self-report, decide within six months whether or not to open an investigation, conclude any investigation within a reasonably prompt timeframe and conclude DPA negotiations within six months. These specific timelines would mark a reduction in the timeframes seen in some DPAs concluded to date, and suggest the SFO is serious about encouraging self-reporting in exchange for a swifter resolution.

You can read more on the new guidance on our Corporate Crime Notes blog here.